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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

abadmus@cowlesthompson.comwww.badmuslaw.com