the Comprehensive Guide to H-1B Visa Alternatives

Transcription

1 the Comprehensive Guide to H-1B Visa Alternatives

2 Introduction Year after year, employers and employees alike cross their fingers and hold out hope when the H-1B cap opens in April. The H-1B visa is the most soughtafter visa category for recent graduates and skilled workers who want to join the U.S. workforce.

3 What makes the H-1B visa so popular? It s the most accessible work visa option for skilled foreign nationals to obtain if they hold a bachelor s degree (or have equivalent work experience). Hundreds of thousands of applications flood the U.S. Citizenship and Immigration Services (USCIS) office every year, and as a result, force all petitions into a lottery for random selection. Each fiscal year, 65,000 H-1B visas are granted to qualified applicants, along with an additional 20,000 for those with advanced degrees. In 2015, USCIS received enough petitions to reach the cap by April 7. Nearly 233,000 petitions were submitted, leaving 64 percent of H-1B seekers without employment authorization. The lottery system determines which applications are processed, requiring those who aren t chosen to make alternative employment arrangements. >60% >60% of applicants aren t selected in the lottery

4 The need for alternatives can arise from a number of situations. Perhaps your foreign national s petition was not selected in the H-1B lottery, or changing business conditions have resulted in unanticipated hiring needs. Whatever the reason may be, it s important to know that alternatives to the H-1B visa are available. This guide outlines the most popular options and key details you need to know. TN Visa E-2 Visa E-3 Visa 01 The Tn Visa 02 The e-2 Visa 03 The e-3 Visa L-1 Visa H-1B1 Visa F-1 OPT 04 The L-1 Visa 05 The H-1B1 Visa 06 The F-1 OPT STEM Extension

5 01 TN Visa The TN Visa Are you sponsoring a Canadian or Mexican national? If so, he or she may be eligible for the TN visa, which shares a number of similarities to the H-1B, and is one of the most popular and attainable alternatives. These visas have no quota limit on the total number of visas issued on a yearly basis, and can be applied for at any time, making it a smart alternative for those who qualify.

6 01 The TN Visa Who s Eligible? Citizens of Mexico OR Citizens of Canada in an occupation included in NAFTA s designated profession list. Designated professions include: Accountant, engineer, scientist, health care professional, architect, lawyer, teacher, economist, social worker, mathematician, psychologist, computer systems analyst, industrial designer and more. A full list of NAFTA-designated professions can be found here: The Specifics: 3 years The TN visa is valid for three years and can be renewed as many times as needed.

7 01 The TN Visa quick tips: The TN visa is not dual intent. In other words, if an employee with a TN visa pursues permanent residency, the individual will experience difficulty renewing the visa and when traveling. Canadians can bypass USCIS altogether and apply directly at a U.S. Customs and Border Protection prescreening or border crossing. Mexicans can bypass USCIS altogether and apply directly at a U.S. consulate abroad. Review: Qualifying Questions Is your employee a citizen of either Mexico or Canada? Is your employee s profession included in the NAFTA professions list? If you answered to both of these questions, the TN visa may be a viable H-1B alternative.

8 02 E-2 Visa The E-2 Visa The E-2 visa category allows managers, supervisors, executives, essential employees or investors from select treaty countries, such as Egypt, Belgium and Colombia, to temporarily travel and stay in the United States to conduct business.

9 02 The e-2 Visa Who s Eligible? Foreign nationals sharing the same nationality as the company/ person that owns the sponsoring U.S. entity. The nationality of both the employee and sponsoring U.S. entity must be included in the list of treaty countries: E-2 treaty countries include: Australia, Belgium, Colombia, Costa Rica, Czech Republic, Egypt, France, Germany, Italy, Japan, South Korea, Mexico, Morocco, Poland, Spain, Ukraine and the United Kingdom. See the full list of treaty countries here: visanow.com/e-2-treaty-countries-2/ There are three types of individuals eligible for an E-2 visa: 1 A foreign national investor with a sizable stake in a U.S. entity (at least 50 percent ownership must be held at all times). 2 A manager or executive of an investing corporation who maintains a controlling interest at all times with at least 50 percent ownership. 3 An essential employee of an investing corporation with key skills that allow him or her to perform specific job functionalities.

10 02 The e-2 Visa The Specifics: An E-2 visa application can be completed either inside or outside of the United States. Regardless of where the visa is attained, it is renewable indefinitely. If applied for while abroad at a U.S. consulate: The length of visa validity varies between two and five years. To obtain the visa stamp necessary for travel on an E-2 visa, foreign nationals should visit their home country s U.S. consulate. Processing times can be as long as five months so the employee will be absent during that period. However, without the visa stamp, he or she will not have travel privileges. If applied for while in the United States: The E-2 visa will be valid for five years, but the employee must remain within the Unites States and cannot travel abroad during that time. quick tips: The E-2 visa is not dual intent. To effectively begin the application process for a green card, the individual should first switch to an H-1B visa. Spouses of E-2 visa holders are eligible to apply for work authorization once they are in the United States.

11 02 The e-2 Visa Review: Qualifying Questions Is the employee coming to the United States to invest sizable capital into the business? Is the employee a manager or executive? Is the foreign national an essential employee for the company? If you answered to any of these questions, the E-2 visa may be a feasible H-1B alternative.

12 03 E-3 Visa The E-3 Visa The E-3 visa is an alternative only applicable to Australian citizens entering the United States to perform services in a specialty occupation, which is defined by the same guidelines that apply to an H-1B or TN visa.

13 03 The e-3 Visa Who s Eligible? Citizens of Australia filling a specialty occupation role. The Specifics: Qualifying Australian citizens must be filling a specialty occupation role, meaning it requires a specific skill set and background of specialized knowledge. While there is no set specialty occupation list, occupations often fall into a few categories. Examples include health care, biotechnology, human resources, education, engineering, computer sciences, management, medicine, etc. E-3 visas also require the Australian citizen to hold a bachelor s degree in a major related to the U.S.-based position they are pursuing, or possess equivalent work experience.

14 03 The e-3 Visa quick tips: The E-3 is valid for two years with unlimited extensions. Spouses of E-3 visa holders are eligible to apply for work authorization once they are in the United States. If the foreign national changes employers, a new E-3 visa must be approved before any work can begin. Since the visa is dual intent, to effectively begin the application process for a green card, the individual should first switch to an H-1B visa. Review: Qualifying Questions Is your employee a citizen of Australia? Is the employee filling a position that is considered a specialty occupation? Does your employee hold a bachelor s degree or equivalent work experience? If you answered to these questions, the E-3 visa may be a viable H-1B alternative.

15 04 L-1 Visa The L-1 Visa The L-1 visa is an H-1B alternative for foreign nationals who are considered key employees in overseas operations.

16 04 The L-1 Visa Who s Eligible? Foreign nationals who ve worked abroad at a foreign affiliate of the sponsoring U.S. entity in an executive, managerial or specialized knowledge capacity. Candidates must have worked abroad for at least 12 continuous months out of the last three years at the time of application. The Specifics: The foreign affiliate of the sponsoring U.S. entity must be related as a parent, subsidiary, branch, affiliate or joint venture. Employees who have worked in an executive or managerial role at the foreign affiliate company are eligible for the L-1A subcategory visa. Employees who possess specialized knowledge are eligible for the L-1B subcategory visa. Specialized knowledge is defined as the specific knowledge relating to a company s product, service, research, equipment, techniques or other interests. Those with specialized knowledge also understand the company s business in international markets or have an advanced level of understanding about processes and procedures specific to the company or industry.

17 04 The L-1 Visa quick tips: L-1A visa holders may receive initial approval for three years with two 2-year extensions available (total eligibility of seven years). L-1B visa holders may receive initial approval for three years with one 2-year extension available (total eligibility of five years). All L-1 visas are dual intent, allowing the visa holder to work in the United States while also pursuing permanent residency (via a green card) at the same time. Spouses of L-1 visa holders are eligible to apply for work authorization once they are in the United States. Review: Qualifying Questions Has the employee worked at a foreign affiliate of the sponsoring U.S. entity for at least 12 continuous months in the last three years? Is the employee in an executive, managerial or specialized knowledge role? Is the foreign affiliate of the sponsoring U.S. entity related as a parent, subsidiary, branch, affiliate or joint venture? If you answered to any of these questions, the L-1 visa may be a viable H-1B alternative.

18 05 H-1B1 Visa The H-1B1 Visa Do you have employees from Singapore or Chile? If so, the H-1B1 visa could be a viable alternative visa option.

19 05 The H-1B1 Visa Who s Eligible? Citizens of Chile OR Citizens of Singapore filling a specialty occupation role. The Specifics: Qualifying candidates must be filling a specialty occupation role, meaning it requires a specific skill set and background of specialized knowledge. While there is no set specialty occupation list, occupations often fall into a few categories. Examples include engineering, mathematics, physical sciences, computer sciences, medicine, health care, education, biotechnology, management, human resources, etc. Candidates must also hold a bachelor s degree (or equivalent) in a major related to the U.S.-based position they are pursuing, or possess equivalent work experience.

20 05 The H-1B1 Visa quick tips: The H-1B1 visa is typically approved for 12 months at a time with extensions available through USCIS or at a U.S. consulate abroad. Like an H-1B visa, employers must pay the prevailing wage of the position and obtain a certified Labor Condition Application with the U.S. Department of Labor. H-1B1 holders cannot take advantage of portability rules, which makes changing employers more difficult. H-1B1 visas are not dual intent. To begin the application process for a green card, the employee should first switch to an H-1B visa. Review: Qualifying Questions Is your employee a citizen of Chile or Singapore? Is the employee filling a position that is considered a specialty occupation? Does your employee hold a bachelor s degree or equivalent work experience? If you answered to these questions, the H-1B1 visa may be a viable H-1B alternative.

21 06 F-1 OPT The F-1 OPT STEM Extension What about employees who currently hold F-1 status? The F-1 Optional Practical Training (OPT) science, technology, engineering and mathematics (STEM) extension is an excellent solution to bridge the time gap between the expiration of OPT and the next H-1B cap season. In applying for both visa types simultaneously, the candidate has a built-in plan B.

22 06 The F-1 OPT STEM Extension Who s Eligible? Foreign nationals with F-1 OPT student status studying at a U.S. college or university. Students who have exhausted their initial 12 months of OPT eligibility. Students who hold a STEM-eligible degree. Examples of STEM-eligible degrees include those in engineering, mathematics, military applied sciences, biology, pharmacology, astronomy and astrophysics, chemistry, economics, behavioral science and environmental studies. The Specifics: The STEM-based OPT extension provides additional work authorization beyond the initial F-1 OPT authorization of 12 months. Once all OPT work eligibility is exhausted, no additional extensions are given. quick tips: Once all extensions are used, the foreign national can pursue a green card, but travel restrictions apply throughout the process. Employers must be enrolled in E-Verify for the foreign national to receive approval for an F-1 OPT STEM extension.

23 06 The F-1 OPT STEM Extension Review: Qualifying Questions Does the employee currently hold F-1 OPT status? Does the employee currently hold F-1 OPT status? Has the employee exhausted the initial 12 months of OPT work eligibility? Does the employee hold a STEM-based degree? If you answered to all of these questions, the F-1 OPT STEM extension visa may be a viable H-1B alternative.

24 Request a free H-1B Alternative assessment today go.visanow.com/contact-us-alternatives Content in this publication is not intended as legal advice, nor should it be relied upon as such. For additional information on the issues discussed, consult a VISAW-retained attorney or another qualified professional. Website, technology platform and administrative services provided by VISAW.com, Inc., a Delaware corporation. Legal services provided by VISAW-retained attorneys. 2016, VISAW.com, Inc., All Rights Reserved.