Alternatives to the H-1B Visa

Obtaining a business visa for the United States can be tougher than it appears. The US Citizen and Immigration Services reached its quota of 236,000 H-1B petitions for the fiscal year of 2017 within the first week of opening the pool in April. On April 9, USCIS used a computer-generated lottery to randomly select petitions for the general category cap and the advanced degree cap. As USCIS will issue about 85,000 H-1B visas under the FY-2017 H-1B quota, there is a 36% chance of obtaining an H-1B visa through the lottery.

If your petition was not selected, there are other alternative routes to secure work authorization in the United States.

• Green Cards in Second Employment-Based Category
• Green Cards in Third Employment-Based Category
• L-1A Visa
• L-1B Visa
• O-1 Visa
• TN Visa for Canadian or Mexican Citizens
• E-3 Visas for Australian Citizens
• H-1B1 for Chilean and Singaporean Citizens

Green Cards in Second Employment-Based Category

There is a common misconception that the Beneficiary must be in the United States for the employer to begin the Green Card process for the Beneficiary. Employers can complete the entire Green Card process while the Beneficiary is outside the United States. Individuals who are born in countries, other than China and India, and who possess either an advanced degree or higher or a Bachelor's degree plus five years of progressive relevant professional experience may be eligible for an employment Green Card in a little over 14 months.

The employment Green Card process has three distinct stages:

1. PERM: the Petitioner must carry out recruitment which takes an average of 4-5 months. After the recruitment is complete, the Petitioner files the PERM application with the Department of Labor (DOL). The DOL processes and certifies the PERM application within 6 months from the date of filing.
2. I-140: During the second stage, the Employer files the Immigration Application with USCIS under Premium Processing which takes 2 weeks to be adjudicated. The Employer must select consular processing for the Immigration Application. Once the petition is approved USCIS sends the petition to the National Visa Center (NVC) for further processing.
3. Immigrant Visa Interview: The NVC normally processes and transfers the application to the US Consulate overseas in about three months. Thereafter, the US Consulate will schedule the Beneficiary for an immigrant visa interview. If all goes well at the interview, the Beneficiary will be approved for the Green Card and will have 6 months to enter the US. The actual Green Card is mailed to the Beneficiary subsequent to her arrival in the US.

An Example of how this process could work:

PERM: Beneficiary is born in Russia. Company X is a United States company and wants to employ Beneficiary as a Systems Analyst. Company X filed an H-1B application in FY 2017 H-1B cap; however, Beneficiary's H-1B petition was not selected in the lottery. Company X begins the PERM process for Beneficiary. Once the PERM process (recruitment, etc.) is complete, Company X files the PERM application with DOL. After 6 months, DOL certifies the PERM application.

I-140 - Shortly after, Company X files Beneficiary's I-140 application with USCIS under Premium Processing and selects Consular Processing. USCIS will take 2 weeks to issue a decision on the petition. Once the petition is approved, USCIS sends the petition to NVC for further processing. Once NVC processes the application, NVC will transfer the application to the US Consulate in Russia.

Immigrant Visa Interview: Thereafter, the U.S. Consulate in Russia will call the Beneficiary for an interview. Subsequent to the completion of the interview, the Beneficiary will be approved for the Green Card and will have 6 months to enter the U.S. After entering the U.S., the Beneficiary will receive a Green Card.

Green cards in third Employment Based category:

Individuals who are born in countries, other than China, India, Mexico and Philippines and who are 1) skilled workers (minimum experience required is two (2) years; or, 2) professionals who possess a Bachelor’s degree. The process is the same as described above; however, it will take slightly longer for the individual to obtain an employment, Green Card. Currently, NVC is processing Immigration Applications filed under EB-3 category with a priority date of February 2016. These processing times are subject to change and must be checked regularly.

L-1A Visa

The L-1A nonimmigrant visa allows a U.S. employer to transfer an executive or manager from its affiliated foreign offices to its offices in the United States. The intending non-immigrant who seeks to be qualified under the L-1A status must have been working in an executive or managerial capacity for the foreign company for at least 1 year out of the past 3 years. Generally, the L-1A visa is granted for three years, with extensions available in two-year increments, with a total stay not to exceed seven years.

L-1B Visa

The L-1B visa is designed to transfer professional employees with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. An example of specialized knowledge personnel would be an individual who possesses propriety knowledge about a company’s product and who travels to the U.S. to utilize his or her specialized knowledge. Generally, the L-1B visa is granted for three years with a two-year extension for a maximum stay of five years.

O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business or athletics or who has demonstrated a record of extraordinary achievement in the motion picture or television industry. The Beneficiary must show that he or she belongs to a small percentage of individuals who have risen to the top in their field and is renowned, leading, or well-known in the field. In order to meet the requirements of the O-1 Visa, the Beneficiary must demonstrate 1) he or she has extraordinary ability by sustaining national or international acclaim (such as receiving a Nobel Prize); or, 2) he or she meets at least 3 of following:

1. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

2. Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field;

3. Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought;

4. Original scientific, scholarly, or business-related contributions of major significance in the field;

5. Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought;

6. A high salary or other remuneration for services as evidenced by contracts or other reliable evidence;

7. Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought; and,

8. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

TN Visa for Canadian or Mexican Citizens

The North American Free Trade Agreement (NAFTA) creates special economic, trade, and immigration benefits for United States, Canada, and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged business activities for U.S. or foreign employers. In order to be eligible to work in the United States under a TN visa, the professional must meet the following requirements:

• Applicant is a citizen of Canada or Mexico
• The profession in which the Applicant is intending to be employed is on the NAFTA List
• Position in the United States requires a NAFTA professional
• The applicant will work in a prearranged full-time or part time job for the employer.
• The applicant meets the education or experience required by the profession.

Unlike Mexican citizens, Canadian citizens are not required to apply for a TN visa at the US Consulate. Canadian citizens may establish eligibility for a TN classification at the time of seeking admission into the United States. This may be at a Canadian airport, i.e. the port of entry into the U.S or at road border crossings. Canadian Citizens must provide the following:

1. Proof of Canadian citizenship

2. Letter from prospective employer detailing job duties, purpose of employment, length of stay and education required

3. Credential evaluation and applicable fees

The initial period of stay on a TN visa is 3 years. There are two options for a non-immigrant who wishes to remain in the U.S.: 1) the employer must file a TN visa extension application with USCIS in the U.S.; or, 2) The non-immigrant must depart from the U.S. before their visa date expires and reapply for a TN visa at a Canadian airport or road border crossing.

E-3 visa for Australian Citizens

Australian citizens can apply for E-3 visa which would allow them to live and work in the United States. To qualify for an E-3 visa, the Australian citizen must demonstrate:

• Citizenship of Australia;
• Legitimate offer of employment in the United States;
• Possess the necessary academic or other qualifying credentials; and
• Employment in a position that qualifies as a specialty occupation; i.e. entry level job in the occupation requires a Bachelor’s Degree or equivalent.

In order to apply for an E-3 visa, the Applicant must make an appointment for an interview at the U.S. Consulate abroad. In addition, the Applicant must present the following documents in the interview:

• Certified Labor Condition Application (LCA) – the LCA is completed by the employer and certified by the Department of Labor which states that the employer will be paying the prospective E-3 visa holder the prevailing wage;
• Academic or other credentials demonstrating he qualifies for the position;
• Job offer letter or other documentation from the employer establishing that he will be engaged in a specialty occupation and will be paid the higher of the actual or prevailing wage; and,
• A certified copy of license or permission to practice (if required).

E-3 visa holders are eligible to stay in the United States for 2 years, and can apply for an E-3 extension for a period of 2 years. Moreover, there is no maximum number of extensions.

The spouse and children of the E-3 visa holder also receive the same E-3 classification. In addition, they are not required to be Australian citizens. The spouse of an E-3 visa holder may obtain an Employment Authorization Document (EAD), and work in the U.S.