Alternatives to the H-1B
May 25, 2015
The H-1B visa program is very successful. Since its launch in 1990, it rose in usage until hitting its statutory cap of 65,000 new temporary workers annually seven years later. At the time, it was raised temporarily to accommodate the tech boom, but this higher cap was allowed to expire. Since 2003, it has sat at the original 65,000 with an additional 20,000 set aside for those with master’s degrees.
Congress may raise the cap as part of a comprehensive immigration reform bill, but this does not appear likely to occur for at least another few years. Despite the increased chance of failure due to being capped out, the amount of H-1B petitions received by the government continues to rise each year. It has thus become necessary to seek alternatives. Many employers will likely be unable to take advantage of these alternatives, but it is worth investigating.
Most of these visas are in some way superior to the H-1B (in that those eligible for both would likely be wiser to opt for the alternative). Unsurprisingly though, qualifying is a significant hurdle. But it is likely true that several employers who desire to use the H-1B program could just easily enough convert their foreign hiring for it to make sense to use one of these alternatives.
Cap Exempt H-1B
The most obvious way around the cap issue is to file in one of the “uncapped” fields. However, this workaround is more for aliens who want the visa than employers who are not now eligible to sponsor uncapped petitions. Nonetheless, employment relating either to universities, their affiliates, or certain nonprofit institutions is not subject to the H-1B cap. For more information, click here.
Some employers may be in serious need of labor due to their experiencing unusually large work volume. If so, they may be able to bring in several H-2B workers once these facts are established with the government. The hiring of H-2Bs follows the same Labor Department restrictions as H-1Bs: prevailing wage determinations and Labor Certification Applications (LCA). This visa is normally only available to people of certain countries, though those not on this list may apply to be exempt from this fact on grounds of national interest. More information can be found here.
International businesses that have subsidiaries or branch offices in the United States can transfer managers, executives, and employees with “specialized knowledge” from abroad to their U.S. locations without a cap, prevailing wage, or LCA considerations to worry about. Aliens can also be sent to the U.S. to create new offices (but with additional restrictions). Either way, the employee must have been employed by the company abroad for at least one out of the last three years. The requirements for this visa are considerable, so further reading may be necessary. L-1 visa holders may stay in the U.S. for up to five or seven years at a time–for specialized knowledge employees and managers/executives, respectively.
Also for employees of foreign companies, the B-1 can be a means of importing professionals to do work connected to their foreign employment. However, this must be on a very temporary basis: usually no longer than six months. The tasks to be performed must require special skills in the same vein as an H-1B position. Also, the alien must be compensated by their foreign employer rather than any U.S. affiliate or client. We have a page dedicated to discussing the B-1 in lieu of the H-1B.
If an employer’s labor needs can be satisfied by Mexican or Canadian professionals, he or she may want to request TN classification, which allows their nearly unrestricted hiring. (Though, it is only available for certain occupations.) The visa also comes without the need to think about caps, prevailing wages, LCAs, or even duration of stay limits. We have more on this visa here.
J-1 Training Visa
U.S. employers that are able to offer rich experiences of cultural exchange may apply to become J-1 sponsors. If this move is successful, it becomes easy to sponsor aliens for the visa. J-1 visa holders can essentially become paid interns and perform “on the job” training. However, these visas are usually only granted for 18 months at a time and are not meant to be indefinite. More information can be found here.
The O visa is an option for those with “extraordinary ability” in their fields. After foreign nationals are considered to have it by the government, there is not much additional difficulty either for them or their prospective employers. Naturally, obtaining this consideration is usually very difficult. We have more on the subject here.
Contact us today if you believe you can take advantage of any of these programs.