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OPTIONS FOR BUSINESSES WHEN THE H-1B VISAS ARE GONE




August 13, 2014


The immigration debate has been raging between the President and the Congress for nearly six years with no resolution in sight. In fact, we can even look back further to President George H.W. Bush's term in office when he tried for immigration reform and was shot down by Congress. The need for immigration reform is genuine, and encompasses all forms of immigration, not just "illegal immigration". The recent arrival of some 54,000 children on the southern border of the United States has drawn attention to the need for immigration reform and a special look at how the laws affect individuals on both sides of the border. Less obvious to the public are the problems that businesses have hiring foreign workers with specialized skills to augment the company's professional staff. This article looks at that issue, and specifically at the options companies have when they are not able to hire foreign workers through the H-1B process.

The federal government's fiscal year begins on October 1. That is the date each year when new H-1B visas are available. If an employer is petitioning for a first time H-1B visa, the employer is allowed to file H-1B visa petitions as early as April 1 for workers that can only begin work in H-1B status on or after October 1. There are 65,000 H-1B visas available for persons that hold a Bachelor's degree or equivalent and an additional 20,000 H-1B visas for persons who have obtained a Master's degree or higher at a U.S. college or university. The H-1B visa is the workhorse of professional level employment based visas. When these visas are gone, the employer must look at other options to see if it can find a means to hire the professional. This year there were approximately 172,500 petitions filed in the first week of April for the 85,000 available visas. There was a lottery held to determine which companies' petition would be chosen for review and, if appropriate, obtain a visa. If an employer's case was not selected for the lottery, the case was returned to the company. The company cannot file again until the following April 1 and the employee cannot begin work until the following October 1. Not being chosen for the lottery can be devastating to the employer, but even more so to the foreign national.

If a company's petition is not selected for the visa lottery, what options are available to the company to hire that particular worker or another foreign worker? There are several possible solutions:

1) Students working in Curricular Practical Training (CPT) or Optional Practical Training (OPT). If an employee has not graduated from his or her university program, he or she may be able to work for your company in CPT. This is allowed for students whose programs require internships or training. Further, following the completion of a university course of study, foreign students are granted one year of OPT where they can work for an employer based on the issuance of an Employment Authorization Document. If the student's degree is in a Science, Technology, Engineering or Math (STEM) area, and the company participates in E-Verify, then the student may be able to extend OPT for an additional 17 months. That would give the company two (and sometimes three) bites at the H-1B apple.

2) Hire foreign workers that already have H-1B visas. Once a foreign national has an H-1B visa, that visa can generally be transferred to other employers without waiting for newly issued H-1B visas. If a person with the skills that your company seeks applies for the specialized knowledge position and has an H-1B visa, you may go ahead and hire.

3) L-1A/L-1B Intra-company transferee visas. The L-1A visa is used to transfer a manager and/or executive from one related entity abroad to a related entity in the United States. The L-1B visa is used to transfer a person with specialized knowledge of the company and its products, processes, and customers to the United States. The requirements for either the L-1A/L-1B is that there is an entity abroad that is related to the U.S. entity as a parent, subsidiary, branch, affiliate, or joint venture. An additional requirement is that the foreign national must have worked for the related entity abroad for at least one year of the past three years.

4) E-1/E-2 Treaty Trader and Treaty Investor visas. The United States has entered into various treaties of trade and commerce with some countries. Pursuant to such treaties, nationals from those particular countries can establish companies in the United States. The foreign nationals must own at least 50% of the entity and must have the same nationality as the treaty country. In that case, the foreign national can be transferred to the United States and can hire or transfer other workers of the same nationality, For example, if a Swiss owned company has set up an office in the United States, it could hire a Swiss citizen and transfer that person to work in the company.

5) TN visas under the North American Free Trade Agreement (NAFTA). Companies can hire citizens of Canada and Mexico for professional positions designated under the TN visa regulations. The employee must meet the specifications of the treaty in order to be considered for the position. This category is readily available for certain professionals and in some cases processing is at the border and is done in a timely manner.

6) O visas for those persons with extraordinary ability. If a company has a foreign national who has risen to the top of his or her profession, the company can use this category to employ the person in the United States.

These are the most available visa categories for employers to explore when the H-1B visas are gone. Of course, each case must be examined to see if it would fit properly into one of the available visa categories. If you are considering the hiring of a foreign national, we are available to assist you in this process.



Related Professional

  • Mona T. Movafaghi

  • Related Practice Areas

  • Employment & Labor
  • Immigration



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