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Alternative Options to H1B : What to Choose When H1B Is Not Available?
Posted
Apr 07, 2008
©MurthyDotCom
This article was written by the attorneys of the Murthy Law Firm for
Murthy's Corporate Bulletin. If you are an employer or HR manager,
interested in the services offered by our firm, contact our
Corporate Services Manager.
©MurthyDotCom
The first day for filing H1B petitions for the 65,000 H1B visas allocated
for the 2009 U.S. government fiscal year (FY2009) was April 1, 2008. This is
a tense period for businesses, as well as for the foreign nationals they
want to hire. Many companies have extended job offers and have filed
petitions with the U.S. Citizenship & Immigration Services (USCIS),
requesting H1B status for qualifying professionals who have never been
counted against the annual H1B limitation. The law places a limit or “cap”
of 65,000 on the number of H1B petitions that can be approved by the USCIS
for employment of foreign nationals who previously were never counted
against the cap. (This includes those who never held H1B status in the past,
as well as those who may have held that status through an employer who was
eligible for one of the limited exemptions from the cap.) There is also a
separate allocation of 20,000 cap exemptions for workers who have completed
U.S. masters' degrees or above.
©MurthyDotCom
FY2009 starts October 1, 2008, so a company seeking to file an H1B petition
for a cap-subject case needed to file starting on April 1, 2008. The law
prohibits such requests earlier than six months before the start date, which
is October 1, 2008. As explained below, it has become necessary to file
cap-subject cases on the very first day due to the high volume of
petitioners seeking the limited cap numbers. Yet, this year the USCIS issued
a new rule providing that, if enough cases are received to reach the cap on
any day between April 1, 2008 and April 7, 2008, USCIS will hold a lottery
to select H1B cases to be processed for approval. Relevant portions of this
rule were summarized in the MurthyDotCom
NewsFlash! USCIS Interim Final H1B Rule.
©MurthyDotCom
Those businesses familiar with the process of obtaining H1Bs for their new
workers (and regular readers of MurthyDotCom or our MurthyBulletin,
who saw our March 23, 2007 article, H1B Cap
and Lottery Issues), are aware that last year, for the first time,
USCIS held a lottery of the cases received on the first two days because
employers submitted more H1B petitions than could be granted. The USCIS’s
lottery will determine the potential winners of the 65,000 available H1B cap
numbers based upon random case selection. In FY2008, USCIS received 123,480
H1B visa requests subject to the cap on the first two days and conducted a
lottery to select those that could be processed for approval. Given that the
U.S. Congress has not passed any legislation to raise the H1B cap, a company
filing an H1B petition may have to consider alternatives to hiring workers
in H1B status in the highly-likely scenario that the events of FY2008 are
repeated in FY2009.
©MurthyDotCom
L-1 for Individuals in Multi-National
Corporations
©MurthyDotCom
A commonly sought alternative to the H1B is the L-1 visa category, which
includes the L1A for executives and managers and the L1B for
specialized-knowledge workers. L-1s are reserved for U.S. businesses with
qualifying relationships to foreign companies. The potential L-1 worker must
have worked for the foreign company for at least 12 months in the three-year
period preceding the filing of the L-1 petition. A large multinational
company that regularly transfers employees to the U.S. may be eligible to
file a Blanket L-1 Petition, which can enhance the efficiency of the L-1
category. A blanket petition is used to obtain pre-approval of the corporate
structure as qualifying for use of the L-1s.
©MurthyDotCom
The burden to prove that a worker has specialized knowledge is high, as it
usually requires showing special knowledge of the company’s products and/or
services or an advanced level of knowledge of corporate practices. In
December 2004, the law was changed, restricting (but not eliminating) the
use of L1B workers at locations other than at the employer’s offices. These
restrictions are discussed in our Aug 9, 2005 article,
USCIS Memo on L1B Petition Approval Standards
under Recent Law. Unlike the H1B, the L-1 category is not subject to
an annual limit and dependents are eligible to request employment
authorization.
©MurthyDotCom
TN for Nationals of Canada and Mexico
©MurthyDotCom
The TN category is a potential option for citizens of Canada and Mexico.
There is no numerical limit or cap on the number of TNs that may be issued.
The category is for professionals, engaged in a specified list of
occupations. Many, but not all, of these are scientific professionals. The
applicants must possess specified degrees and licenses, appropriate to the
particular profession. With the exception of management consultants, all TNs
must have job offers from U.S. employers.
TNs are granted in one-year increments, without any maximum limit. There is
no initial filing with the USCIS. The applications are made either at the
port of entry for Canadians or at the consulate for Mexicans.
©MurthyDotCom
H1B1 for Nationals of Chile and Singapore
©MurthyDotCom
Often overlooked and underutilized, the H1B1 nonimmigrant visa category was
created after President George W. Bush signed into law certain Free Trade
Agreements (FTAs) with Chile and Singapore on September 3, 2003. Both FTAs,
as well as the H1B1 nonimmigrant visa category, became effective on January
1, 2004. The H1B1 provides a potential alternative to the H1B for foreign
nationals from the countries of Chile and Singapore. The H1B1 category has
numerical limits that are carved out of the available 65,000 H1B cap. That
is, the H1B cap is reduced by the numbers available for the H1B1 for
nationals of Chile and Singapore. Specifically, 1,400 H1B1 visa numbers are
available for Chileans, while 5,400 are set aside for Singaporean nationals.
Despite the relatively low numbers, this category has not been used to its
full potential so far.
©MurthyDotCom
The requirements are identical to those of the regular H1B category.
Additionally, the H1B1 nonimmigrant classification is available to certain
professionals who may not possess post-secondary degrees or the equivalent,
but who will engage in the profession of Agricultural Managers or Physical
Therapists (for Chilean nationals only); or Disaster Relief Claims Adjusters
or Management Consultants (for both Chilean and Singaporean nationals).
©MurthyDotCom
Similar to the TN visa for Canadian and Mexican citizens, one advantage of
the H1B1 category is that H1B1 beneficiaries do not need to first obtain
approval of the H1B1 Petition from the USCIS. Consequently, H1B1s can apply
directly for their visas at a U.S. consulate. H1B1 visas are only valid in
one-year increments and do not provide certain protections available to H1B
and L-1 holders under the doctrine of dual intent. This means that H1B1
beneficiaries may not pursue permanent residence in the United States while
in H1B1 status. The availability of this category, however, does not
preclude Singaporean and Chilean nationals from applying for regular H1B
status at a later point, which would be appropriate if they decided to
process for permanent residence.
©MurthyDotCom
O-1 for Individuals with Extraordinary Ability
©MurthyDotCom
An alternative to the H1B that is available to some people is the O-1
category. A successful O-1 petition requires that a company show the
sponsored person has "extraordinary ability in the sciences, arts,
education, business, or athletics, which has been demonstrated by sustained
national or international acclaim."
©MurthyDotCom
Proving extraordinary ability for O-1 in the categories other than arts
requires either the receipt of a major, internationally recognized prize
(such as the Nobel Prize) or at least three of the criteria listed in the
law. These criteria are: receipt of nationally and/or
internationally-recognized awards; membership in organizations that require
outstanding achievement; published materials about the foreign national in
professional and/or major trade publications; judging the work of others;
original scientific and/or scholarly work of major significance; authorship
of scholarly work; employment at an organization with a distinguished
reputation; receipt of a high salary in relation to others in the field.
©MurthyDotCom
As expected, far more people qualify for H1B status than for O-1. The O-1
has no cap, or limitation. Additionally, persons who previously held J-1
Exchange Visitor status, who are required to return to the country of last
permanent residence for two years, may be eligible for this status without
the waiver that would be required of him/her in H1B status.
©MurthyDotCom
B-1 Visitors for Business
©MurthyDotCom
B-1 status is sometimes examined as an alternative, but there are strict
limits on its use. The B-1 can be very useful for a businessperson who needs
to travel to the U.S. on short notice to attend meetings and the like. An
individual in B-1 status cannot engage in local work in the U.S. A very
limited exception is obtaining the B-1 visa to install or repair equipment
in connection with a contract to sell the equipment that includes this
service as a term of sale, which usually requires sending technical expert/s
to oversee installation. This exception does not apply to the sale of
services. It is critical that the applicant/s prepare for the visa
interview. Ensuring that the B-1 visa issued is annotated with the reason
for travel should also facilitate entry to the United States. Entry to the
U.S. with a B-1 visa entails some added risk because Customs & Border
Protection (CBP) officials inspecting visitors may not understand that the
foreign national’s intended activities are within the scope of the B-1.
©MurthyDotCom
H2A for Agricultural Seasonal Workers and H2B
for Skilled and Unskilled Nonagricultural Workers
©MurthyDotCom
With both the H2A and the H2B status categories, a business’s need for the
services of a worker must be temporary. For the H2A, the work must be
seasonal. For the H2B, the need must be the result of a one-time occurrence,
seasonal demands, a peak load making the number of people permanently
employed in the job temporarily insufficient, or an intermittent need. In
each case, the need must be documented carefully and an application for
Labor Certification (LC) must be filed with the U.S. Department of Labor
(DOL), showing that there are no U.S. workers in the local area capable of
performing the services required.
©MurthyDotCom
The approval of this LC usually allows work for no more than one year and is
filed with the USCIS petition for approval of the H2A or H2B. Unlike H2A
cases, the LC approval for the H2B is only advisory, which means USCIS could
disagree with the DOL's certification of the company’s need of foreign
workers. A company may include multiple beneficiaries in the USCIS petition,
but must list each name. In a petition for H2A workers the employer can
leave out the names of potential hires who are outside the U.S. As with any
worker abroad, each person must apply for a U.S. visa. Employers should
consider this stage in calculating the start date.
©MurthyDotCom
E-1 for Treaty Traders and E-2 for Treaty
Investors
©MurthyDotCom
Some businesses, alternatively, may be able to use the E-1 Treaty Trader or
E-2 Treaty Investor Visas designed for nationals of countries with which the
U.S. has treaties of commerce and navigation or similar agreements. The E-1
is for individuals coming to the U.S. to carry on substantial trade in goods
or services. The E-2 is used for coming to the U.S. to invest substantial
capital or direct and develop the operations of an entity by investing
funds. One can qualify as a principal trader or investor, or as an employee
of the trader or investor company, but all three must have the same treaty
country nationality. These visas are for executives, managers, or others
with skills and experience that are "essential" to the success of the
operation. MurthyDotCom has more information about E visa
requirements in our article, Overview: E
Visas for Traders and Investors. As with the O-1 category, there is
no numerical limit on the E category and E dependents are eligible to work.
©MurthyDotCom
E-3 for Nationals of Australia
Effective September 2, 2005, the U.S. Department of State expanded the
definition of treaty trader / investor by recognizing a new nonimmigrant
treaty alien (E-3), a national of Australia, entering the United States
solely to perform services in a specialty occupation. There is an annual
numerical limit of 10,500 E-3 visas. A spouse may apply for an employment
authorization document from the USCIS.
©MurthyDotCom
This visa category appears to be a hybrid between an E visa and an H1B. This
category is in addition to E-1 and E-2 visas, for which Australians are also
eligible. The definition of a specialty occupation follows the regulatory
criteria already developed by the USCIS for the H1B category. Like the H1B,
the E-3 requires the filing of a Labor Condition Attestation (LCA) with the
U.S. Department of Labor.
©MurthyDotCom
The E-3 petition is not submitted to the USCIS for pre-approval. Instead,
one presents the application directly at the U.S. consulate abroad and
requests the visa for travel. The application should include the original
LCA (each consulate has the discretion to accept a copy of the LCA in lieu
of the original), evidence of the employee's credentials, and the necessary
specialty occupation information, as covered above.
©MurthyDotCom
The E-3 does not have a statutory limit. Therefore, the visa should be
issued for the time requested in the LCA document. Typically, a two-year
period is requested, and it may be repeatedly extended. At this time, the
USCIS has not promulgated any regulations for extending the visa while an
individual is present in the U.S. or for one to file for a change of status
(COS) to an E-3 within the U.S. The USCIS, however, has provided guidance
that a COS or EOS may be filed in certain circumstances, although often this
is not practical due to delays and the unavailability of premium processing
for the E-3 classification.
©MurthyDotCom
The DOL issued a proposed rule in the Federal Register on January 12, 2007
that addresses the procedure to obtain an LCA in E-3 cases. The proposed
regulation was reported in our January 19, 2007 article
DOL Proposes Rule on E-3 Labor Condition
Applications, available on MurthyDotCom.
©MurthyDotCom
Conclusion
©MurthyDotCom
The Murthy Law Firm's team of attorneys has experience advising clients on
ways to address their needs regarding the employment of foreign nationals
despite the unavailability of the H1B visas. When the H1B is not an option,
it is important to discuss the matter with an experienced attorney who can
work with your company to explore alternative options and weigh other
courses of action. An undiscovered detail or new opportunity may become the
key to unlocking a visa option to the H1B. The Murthy Law Firm has been
successful in dedicating all the resources needed to ensuring our clients
find the solutions that immigration law can provide, whether it is the H1B
or an alternative to ensure that the objectives of any business can be
achieved with the ability to employ the best and the brightest workers
available.
©MurthyDotCom
"We know immigration matters!"
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