As the U.S. economy is on a path to a slow recovery, companies have been
ramping up their hiring effort, especially in the technology industry.
The entire FY2015’s allotment of H-1B visas were used up during
the first week of April, 2014, leaving employers with an H-1B visa drought
until October 1, 2014. Moreover, many highly qualified foreign professionals
are unable to get an H-1B visa due to the random and arbitrary H-1B lottery.
In this article, we will explore some of the alternatives to the H-1B visa.
1. EB-2 Green Card
EB-2 green cards may be a good alternative to an H-1B visa for U.S. employers
who seek to bring qualified foreign workers from countries whose U.S.
immigrant visa allotment is not backlogged, i.e. all countries except
India and China. There is a common misconception that a foreign worker
must be in H-1B status before the employment-based green card application
process can begin. The law does not require a foreign worker to be in
H-1B status as a prerequisite for a green card. As a matter of fact, an
employer can apply for a green card for a foreign worker who has never
stepped a foot in the U.S., provided that the foreign worker meets all
the statutory criteria concerning the foreign worker’s education
and prior experience, and the petitioning employer has the ability to
pay the green card salary.
The EB-2 employment-based preference category is for members of the professions
holding an advanced degree or its equivalent (equivalent of a U.S. master’s
degree, or a U.S. bachelor’s degree and five (5) years progressive
work experience in the field), or foreign nationals of exceptional ability.
Provided that the beneficiary meets the EB-2 eligibility, EB-2 green card
has many advantages. First, barring any audit from the Department of Labor,
the entire green card application process normally takes approximately
one (1) year for foreign workers from countries whose U.S. immigrant visa
allotment is not backlogged. As of June 30, 2014, the priority dates for
EB-2 category are current for all nationals other than Indian and Chinese,
meaning that an immigrant visa number is immediately available for non-Chinese
and non-Indian nationals. With limited exceptions, the EB-2 green card
application process has three steps: 1) the employer files a PERM Labor
Certification and obtain certification from the Department of Labor; (2)
the employer then files an I-140 Immigrant Petition for Foreign Worker
with USCIS; and (3) when the I-140 is approved and when the beneficiary’s
priority is current, the beneficiary files an I-485 Application to Adjustment
of Status if the prospective EB-2 foreign employee is in the U.S., or
applies for the green card at the U.S. consulate if the prospective EB-2
foreign employee is overseas. When a priority date is current, such as
the case for nationals of all countries other than India and China, there
is no wait time for an immigrant visa number and the beneficiary can apply
for a green card immediately after the I-140 is approved, through either
Adjustment of Status within the U.S. or Consular Processing overseas.
In sum, EB-2 green cards is a good alternative to H-1B visas for employers
to bring qualifying foreign workers abroad who are not Indian or Chinese
nationals, as the entire process can be completed under one (1) year.
Moreover, there is much more certainty in obtaining the green card than
having a less than 50% chance of getting picked in the H-1B lottery.
2. L-1 Intracompany Transferee
The L-1 Intracompany Transferee nonimmigrant visa category is one of most
useful visas for multinational companies to bring foreign employees to
the U.S. If the requirements are met, the L visa category has many advantages,
including, amongst other things, a fast track to green cards (L-1A executive
or manager only), and work permits for L-2 spouses. These basic requirements are:
- The petitioning U.S. company must be a qualifying organization, i.e., one
that is doing business in the U.S. and another country during the L-1
- The employee to be transferred to the U.S. on an L-1 visa must have been
employed abroad in an “executive or managerial” position (L-1A)
or a position involving “specialized knowledge” (L-1B);
- The employee must have been employed with the U.S. company’s foreign
affiliate, parent, subsidiary, or branch office for at least one continuous
year within the last three years;
- The employee must be coming to the U.S. company to work in an executive,
managerial, or specialized knowledge capacity; and
- The employee must be qualified for the position by virtue of his or her
education and prior experience.
Employers must carefully analyze whether an employee can be classified
as a manger or executive, or a specialized knowledge employee, as the
distinctions have become increasingly important. First, different limits
on period of stay apply: seven (7) years for managers and executives,
and five (5) years for specialized knowledge personnel. Second, L-1A managers
and executives have a fast track to green card – EB-1C Multinational
Manager or Executive – that is not available to L-1B specialized
3. E-3 for Australian Nationals
The E-3 visa is a good alternative for Australian nationals. The E-3 classification
is very similar to H-1B in that foreign workers must come to the U.S.
to perform services in a specialty occupation, i.e. the occupation must
require a U.S. Bachelor’s degree in the specific specialty or equivalent
as the minimum entry requirement for the position. While there is an annual
quota of 10,500 E-3 visas, as a practical matter, the E-3 quota is rarely
reached. Consequently, E-3 beneficiaries can start at any date within
the calendar year, and are not required to start on October 1st like new
H-1B beneficiaries. The E-3 visa has other advantages over the H-1B visa.
First, employers do not need to obtain prior approval from USCIS or to
pay a filing fee to USCIS if the beneficiary is outside the U.S. Rather,
the E-3 beneficiary can apply for the E-3 visa at a U.S embassy or consulate.
Second, the maximum period of stay on an H-1B visa is six (6) years, and
extension beyond that is only possible when there is a PERM Labor Certification
or I-140 pending adjudication for at least 365 days, or when there is
an approved I-140 and the Beneficiary’s priority date is not current.
In contrast, the E-3 visa can be extended indefinitely in two-year increments,
so long as the Beneficiary meets all the criteria and has no intent to
live in the U.S. permanently. Third, unlike H-4 dependents who are not
permitted to work in the U.S., spouses of E-3 beneficiaries can apply
for and receive employment authorization document (EAD).
4. TN for Canadian or Mexican Nationals
The TN visa permits qualified Canadian and Mexican citizens to seek temporary
entry into the United States to engage in business activities at a professional
level. The biggest advantage of a TN visa over an H-1B visa is that there
is no annual cap, so Canadian and Mexican citizens do not have to compete
for a TN visa number. Other advantages include indefinite extension of
stay in three-year increments so long as the beneficiary meets all TN
criteria. Similar to H-4 dependents, however, dependents of TN beneficiaries
(TD, or Trade Dependents) are not permitted to work in the U.S.
Unlike the H-1B visa where prospective foreign employees can work in any
specialty occupation, Canadian or Mexicans entering the U.S. on a TN visa
must be engaged in a profession included in Appendix 1603.D.1 of the North
America Free Trade Agreement (NAFTA). The most useful occupations among
them are accountants, computer systems analysts, engineers, registered
nurses, architects, lawyers, university-level teachers, research assistants,
hotel managers, librarians, and management consultants. The basic requirements
of a TN visa are:
- the beneficiary is a citizen of Canada or Mexico;
- the proffered position is included in Appendix 1603.D.1 of NAFTA;
- prearranged full-time or part-time employment with a U.S. employer; and
- the beneficiary is qualified to perform the duties of the proffered position,
i.e. having a U.S. Bachelor’s degree education or equivalent (Note:
unlike the H-1B visa category wherein three years of progressive experience
can be equated to one year of formal education, if a TN profession requires
a Bachelor’s degree, experience CANNOT be substituted for that degree).
Employers do not need to obtain prior approval from USCIS and the beneficiary
can apply for a TN visa at a U.S. consulate or port of entry. A Canadian
citizen is not required to apply for a TN visa at a U.S. consulate. Instead,
the Canadian citizen will have to establish TN eligibility at the time
he or she seeks admission to the U.S. at a Canadian airport prior to boarding
a flight to the U.S. or at a road border crossing.On the other hand, a
Mexican citizen is required to obtain a TN visa at a U.S. consulate prior
to seeking admission at the port of entry.
Unlike the H-1B visa which has a maximum six years of period of stay, TN
visa can be extended indefinitely at three- year increments. However,
the drawback is that dual intent is not recognized in TN visas, meaning
that applying for a green card can result in a denial of a TN extension
request or entry into the U.S on TN visa. However, USCIS has stated that
a pending or approved employment- or family- based immigrant petition
filed on behalf of a TN Beneficiary is not sufficient to impute immigrant
intent. “An intent to immigrate in the future which is in no way
connected to the proposed immediate trip need not in itself result in
a finding that the immediate trip is not temporary. An extended stay,
even in terms of years, may be temporary, as long as there is no immediate
intent to immigrate.” 9 FAM 41.59 N5 Temporary Entry. As a practical
matter, filing the immigrant petition is not advised until the TN Beneficiary
changes status to H-1B or at least has the TN status extended and does
not plan to travel.
5. H-1B1 for Chilean and Singaporean Nationals
Another good option in lieu of H-1B is the H-1B1 visa. This visa category
is only available to Chilean and Singaporean professionals in specialty
occupations. The annual cap for the H-1B1 visa is 1,400 to Chilean citizens
and 5,400 to Singaporean citizens, for a total of 6,800. These numbers
count against the regular H-1B cap. The H-1B1 visa category closely tracks
the H-1B visa qualifications. Initial admission under H-1B1 is for one-year
period, although H-1B1 visas are multiple entry and valid for a maximum
of 18 months. Extensions are permitted in one-year increment. Although
there is no maximum period of stay, after five consecutive extensions,
any subsequent extension will count against the overall H-1B cap. Moreover,
similar to TN visas, the dual intent feature of H-1B is not recognized
for H-1B1 Beneficiaries. As a result, a pending Adjustment of Status application
can result in a denial of an H-1B1 extension request or entry into the
U.S on H-1B1 visa. Nevertheless, USCIS has stated that a pending or approved
employment- or family- based immigrant petition filed on behalf of an
H-1B1 Beneficiary is not sufficient to impute immigrant intent. As a practical
matter, filing the immigrant petition is not advised until the H-1B1 Beneficiary
changes status to H-1B.
Verma LAW FIRM has successfully obtained green card, L-1, E-3, TN, H-1B1,
as well as other visa categories outlined above for our clients. These
H-1B alternative options give companies more certainty in making hiring
decisions than H-1B and attract a more diverse talent pool. If you are
interested in these H-1B alternatives, please contact our office at (408)
request legal consultation.