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TOP 6 ALTERNATIVES TO H-1B VISASFOR FOREIGN NATIONAL PROFESSIONALS
Ann Massey BadmusCowles& Thompson, PC
WELCOME
Practice LeaderImmigration SectionCowles & Thompson, PCwww.badmuslaw.com
Ann Massey BadmusPresenter
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AGENDA
H-1B Visa Overview
Alternative Hiring Options
Alternative Temporary Visa Options
Green Card Options
H-1B Visa Overview
H-1B Nonimmigrant Visas
A nonimmigrant (temporary) visa that allows a non-citizen to be employed in the United States for up to 6 years in a “specialty occupation” for a specific employer (“petitioner”).
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What is a Specialty Occupation?
An occupation that requires highly skilled specialized knowledge and
A bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation
Employee Qualifications
Have completed a U.S. bachelor’s or higher degree (or its foreign equivalent) or
Have education, training, or experience in the specialty equivalent to the completion of such degree (3:1 rule) and
Possess full state licensure if required to practice in the state of employment
H-1B Numerical Limitations - “H-1B Cap”
Quota of 65,000 new H-1B visas per fiscal year (except Free Trade Act (FTA) nationals)
20,000 per fiscal year for persons who hold US Master’s degrees or higher
Applies to first-time H-1B or previously cap-exempt H-1B employees
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Alternatives to Cap-Subject H-1B Visas
COMMON REASONS TO LOOK FOR OTHER OPTIONS
H-1B visa cap application rejected
Too late to apply for H-1B cap visa
H-1B maximum limit of 6 years has been reached
H-1B visa application denied
HIRING OPTIONS – PREVIOUS H-1B EMPLOYEES
H-1B candidates previously counted in the cap
Remaining time on 6 year maximum period
Inside or outside the U.S.
Can apply any time
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Cap-exempt employers
Universities and non-profit petitioners affiliated with post-secondary educational institutions
Government research organizations and non-profit petitioners affiliated with government research institutions
For-profit employers who place employee at a non-profit, university-affiliated facility for at least 50% of work week
Cap-exempt beneficiaries
Physicians who are beneficiaries of J-1 IGA waivers only (does not include hardship waivers or persecution waivers)
HIRING OPTIONS – CAP EXEMPTIONS
For profit employer offers part-time
employment to the provider (ranges from 5 to 60 hours/week)
The start date of the H-1B must be a date
before the EMPLOYEE’s cap-
exempt H-1B expires.
Concurrent H-1B petition is filed and approved before
current cap-exempt employment ends.
HIRING OPTIONS – CONCURRENT H-1B
F-1 Optional Practical Training (OPT) in the field of training for12 months
17 month extension available for STEM fields – www.ice.gov for list of occupations
E-verify required for STEM extension
HIRING OPTIONS – F-1 STUDENTS
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Temporary Visa Options – Country Specific
H-1B1 Chile and Singapore
E-3 Australian
TN Trade NAFTA
E-2 Treaty Investor or Trader
Nationality – must be citizen of Singapore or Chile
Specialty occupation and other requirements similar to H-1B
Annual quota of 6,800 (1,400 professionals from Chile and 5,400 professionals from Singapore), never reached
18 month period of employment – no limit on extensions and can change to H-1B if available
Dependent spouses cannot work
H-1B1 Specialty Occupation Professional Visa
Nationality – must be citizen of Australia
Specialty occupation and other requirements similar to H-1B
Annual quota of 10,500, never reached
Two year period of employment – no limit on extensions
Spouses can work upon USCIS approval
E-3 Specialty Occupation Professional Visa
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Nationality – must be citizen of Mexico or Canada
Profession must be listed on the NAFTA occupations list -8 CFR § 214.6
No quota or limit on the number of TN visas each year
Three year period of employment – no limit on extensions
Dependent Spouses cannot work
TN Trade NAFTA Professional Visa
Nationality – owner and employee must be citizen of treaty country –
http://travel.state.gov/content/visas/english/fees/treaty.html
Investment must be substantial in a real, operating enterprise
Treaty investor must have controlling interest (50% or more) in the company
Essential personnel, professional, or managerial positions
Spouses can work with USCIS approval
Treaty Investor (E-2) Visa Program
Temporary Visa Options – training specific
H-3 trainee
J-1 exchange visitor
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H-3 Trainee
Training in any field of endeavor, not available in home country.
Position must not be part of company operations
No productive employment
Two year maximum period of employment – no extensions
Dependent Spouses cannot work
J-1 Exchange Visitor Trainee
Trainee - has a degree or professional certificate & min one year work experience outside the U.S., or has 5 years of work experience outside the U.S.
Must use approved program sponsor
Must be bona fide training program with detailed plan but some productive work possible
18 month maximum period of training program
Spouses can work with USCIS approval
Caution: Possible two year home residence requirement (check country skills list)
Temporary Visa Options – General
L-1 transferee
O-1 extraordinary ability
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Temporary transfer of employee to the US to continue employment with parent, branch, or subsidiary of foreign business.
L-1A executive or high level managerial employee or L-1B specialized knowledge employee
Employee must have been employed with foreign business for continuous period of at least 1yr within the last 3yrs.
Five to seven years maximum period of employment
Spouses can work with USCIS approval
L-1 Transferee Visa
Must show sustained national or international acclaim in applicant’s field of endeavor
Overall evidence must show applicant has “risen to the top of the field”
Employer required and expert/peer consultation required
Three year initial period of employment, unlimited extensions
Dependent spouses cannot work
O-1 Extraordinary Ability Visa
Temporary Visa Options – Dependent Spouses
H-4 (H-1B spouse)
E-2 dependent
E-3 dependent
L-2
J-2Employment Authorization Document(EAD)
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Green Card Options
Employer’s application for specific employee
Employer must show no available and qualified U.S. citizen or permanent resident physician through local recruitment
Employer must show ability to pay prevailing wage
Employee must be qualified at the time of filing of labor certification
EB-2 advanced degree, EB-3 professionals and skilled/unskilled workers
EB-2/EB-3 PERM Labor certification
General – applies to any profession if work is in national interest
Physician – 5 years medical care in HPSA or MUA –specialties accepted
Self-sponsored and self-employment possible – job offer not required
Employment authorization document available while application is processing, for most applicants
National Interest Waiver
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Must show sustained national or international acclaim in applicant’s field of endeavor
Overall evidence must show applicant has “risen to the top of the field”
Must show prospective contribution to the United States
Can be self-sponsored but must show prospective employment in the U.S
EB-1A Extraordinary Ability
TIMELINE
Immigrant Visa Number must be available. Visa backlog delays
Physicians with IGA J-1 waivers cannot obtain permanent residence before completion of service
Employment authorization available within 4 to 8 months while waiting for approval (in most cases)
Permanent Residence (green card) within 1.5 to 3 years for most (subject to fluctuation)
• Facts of each case are different.
• Other options may be available depending upon employment circumstances.
• The information provided here is general in nature and should not be relied upon for specific situations and is not legal advice.
• Consult with an experienced immigration attorney to get the right advice and direction.
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QUESTIONS?
FOR FURTHER INFORMATION
Ann Massey Badmus901 Main Street
Suite 3900Dallas, Texas 75202
214-672-2161