16 Apr

Alternatives to H-1B Visa

USCIS has released the numbers for Master’s as well as Regular cap subject petitions that they received for Fiscal Year 2019.

USCIS conducted the lottery system on April 06, 2018. The random computer generated number is the system that has been used every year for the past few years to determine the fates of those lucky few talented, educated individuals who will be able to pursue careers in the U.S.

For FY 2019 H-1B cap filing season, the service had 65,000 visas available under the standard cap (i.e individuals with a Bachelor’s degree) and 25,000 advanced cap (i.e. individuals with a Master’s degree earned from an accredited American institution of higher learning) The service received a total of 190,098 petitions!

Whilst this is a decline from the total number of applications received last year, it is nevertheless a disheartening outcome for applicants and employers alike. Individuals with Bachelor’s degrees or higher who want to work in the US and to contribute to their chosen fields ought to be given permission to do so.

Although there have been bills and a call to increase the cap to allow for more visas, there are no indications that these changes will be forthcoming anytime soon.

Employers and employees alike can look to the following options as alternatives to the H-1B.

EB-5: Increasingly an option for Foreign students as well as those already in the US but stuck in seemingly endless Green Card (I-140) backlogs, the EB-5 program allows an applicant and her family (spouse and child/ren under 21) to obtain Lawful Permanent Residence (“Green Card”) based on an investment of either $500,000 or $1Million.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations. The TN visa is not subject to a cap and can be obtained either by applying at the border (for Canadians) or by filing a petition with USCIS.

L-1 Intracompany Transferee

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

We have assisted many US employers who were not successful in the H-1B cap lottery but were able to send their employee(s) abroad on an assignment for one year and then bring them back to the US on L-1 visa.   For US employers who have international presence and for whom it is possible to send a candidate on an assignment, abroad, the L-1 visa option is a good alternative.

E-1/E-2: The E-1/E-2 visa is available for executives, supervisors, and essential employees of E-1/E- 2 employers. This visa is available to foreign nationals entering the U.S. solely to carry on substantial trade or develop and direct the operations of an enterprise in which he or she has invested (or the foreign parent company has invested in) or is actively in the process of investing a substantial amount. Once the E-1/E-2 company has been established, key employees from the treaty country can also enter under these visas. Those key executives, supervisors, and essential employees must have the same nationality as the treaty employer.

J-1 or H-3 Trainee Visas: Employers may also consider participating in J-1 trainee programs. A J-1 trainee is eligible to work for a U.S. employer and be compensated for training purposes as long as the terms of the training program are approved through a J-1 program sponsor. Most J-1 trainee programs can be granted up to 18 months. The trainee must be sponsored by a USIA-approved Exchange Visitor Program.

Another training visa that employers have increasingly relied on in recent years is the H-3 trainee visa. The H-3 nonimmigrant trainee visa is available for individuals who are coming temporarily to the U.S. for the purpose of receiving training in any field of endeavor. The H-3 trainee visa is only available if the following requirements are met: the proposed training is not available in the foreign national’s home country; the trainee will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed; the trainee cannot engage in productive employment unless such employment is incidental and necessary to the training; and the training will benefit the trainee in pursuing a career outside the United States. The H-3 visa is limited to two years. If the H-3 trainee has been in the US for two years, they are not permitted to then change status to an H or L visa category, until they have left the United States for 6 months.

Please do not hesitate to contact us should you have any questions, or need assistance in determining whether any of these options would be best suited to your needs.

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