Alternatives to the H-1B
November 24, 2014
When one thinks about the nonimmigrant workforce in America, most turn first to the H-1B visa. However, there are often ample alternatives to the H-1B process that will spare employers and foreign nationals alike from waiting until April to submit and the stress of the current “wait-and-see” lottery system. Each of the categories below allow for an employee to begin upon approval of the petition, rather than waiting for the beginning of the fiscal year in October.
Based upon the North American Free Trade Agreement (“NAFTA”), the TN visa allows Canadian and Mexican nationals to enter the United States for employment in specific professional occupations. The beneficiary employee must meet any associated education requirement for the particular profession. This visa does not require any attestations by the employer to the Department of Labor via a Labor Condition Application (“LCA”). A TN may be extended indefinitely, unlike the six year cap on the H-1B visa. Additionally, for Canadians, this visa does not require approval from USCIS prior to entering. A Canadian may simply present themselves at the border to a CBP officer, and with the proper documentation, will be allowed entry in TN status. Depending on the intended Port of Entry, it is often safer to apply with USCIS and present an approval notice, rather than to rely on the knowledge and opinion of a Border Officer to grant status.
The E-3 visa is a great alternative for Australian nationals. Approvable in two year increments, the E-3 can be extended indefinitely like the TN. The beneficiary employee must meet an education requirement for the specialty occupation. The E-3 also provides additional benefit to the dependents of the primary visa holder, as a spouse may request work authorization of their own. Like the H-1B, the employer is held to certain requirements by the Department of Labor via a certified LCA necessary for the petition.
The L visa is broken into two major categories; L-1A for multinational executives and managers, and L-1B for specialized knowledge employees. This category was created to provide multinational organizations with flexibility to transfer important employees between foreign and U.S. organizations. There is no LCA requirement with the Department of Labor, and spouses of the principal L-1 visa holder may request work authorization. To be eligible for the L-1 visa there must be a qualifying relationship between the foreign organization and the U.S. petitioner, such as parent/subsidiary, affiliate, or branch office. Further, the beneficiary employee must have been employed by the foreign operation for at least one of the last three years. Unfortunately, due to blatant abuses by certain organizations, the L visa has come under a great deal of scrutiny from Congress. This has translated to excessively high RFE and denial rates for this category, particularly for L-1B specialized knowledge personnel.
L-1A Multinational Executive or Manager
The L-1A is perhaps the most versatile visa for international businesses. The beneficiary employee must have held an executive or managerial position abroad, and must be entering the United States to fill an executive or managerial position at the petitioning organization. This means more than a lofty title. The “President” of a company that spends his/her days playing golf and comes in to sign checks on Fridays would not qualify for an L-1A. As with most work visa’s, it is the job duties of the employee that matter. Even those employees that may not manage people can be approved for an L-1A if they manage an important function of the organization. Though not dispositive, approval of an L-1A visa can often translate to a First Preference Employment Based Immigrant Visa (EB-1).
L-1B Specialized Knowledge
The L-1B is perhaps one of the most difficult visa’s to qualify for in the last three years. The intent of this category was to allow organizations to bring employees with extensive knowledge of their processes, procedures, products, etc., from their overseas operations into the United States. Unfortunately, USCIS has recently taken a position on what “specialized knowledge” means that severely restricts the ability for viable candidates to be approved. Our recent experiences with this category have shown that approvals are possible with strong evidence and a well-crafted support letter.
The O-1 visa is intended for those with “Extraordinary Ability”. It is reserved for those at the upper echelon of their respective profession. A good indicator of qualification for the O-1 is the prominence of the candidate in the field. There are two categories of the O-1 with slightly different requirements, based upon the field of endeavor. The O-1 is often used by artists, musicians, actors, athletes, and scientists.