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:

1. 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 visa period;
2. 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);
3. 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;
4. The employee must be coming to the U.S. company to work in an executive, managerial, or specialized knowledge capacity; and
5. 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 knowledge personnel.

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:

1. the beneficiary is a citizen of Canada or Mexico;
2. the proffered position is included in Appendix 1603.D.1 of NAFTA;
3. prearranged full-time or part-time employment with a U.S. employer; and
4. 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) 436-1010 or request legal consultation.