The run on H-1Bs using up the allotment for new visas for this year has left many scrambling for an alternative authorization to live and work in the United States until more H-1Bs become available again next year.
In this article, we discuss alternatives to the H-1B visa for those who cannot apply for an H-1B because they are subject to the cap, such as F-1/OPT holders or employees overseas seeking to enter the United States for the first time to work.
Below is just a big-picture overview of the visa type. Whether you are eligible or should even pursue one of these alternatives requires a thorough review by a competent immigration attorney of your unique situation and your longer-term immigration goals.
B-1 in Lieu of H-1B
This useful alternative is on the chopping block due to its high fraud factor, but for the moment, it is still available. This form of a regular tourist visa is available to employees of foreign companies coming to the United States for a short visit for work on behalf of that foreign company. For example, a company in India may have a sister company in the United States and the employee is needed in the United States to assist with a client tech project.
The key eligibility criteria for this visa are:
1. The work to be done in the United States should be at the H-1B level (i.e. a specialty occupation normally requiring a bachelor’s degree)
2. The employee should have a bachelor’s degree relevant to the services to be provided.
3. The employee must be employed by a foreign firm. He cannot be employed by the U.S. firm.
4. The employee’s wage for work in the United States must be paid by the employee’s company abroad. The employee must not receive any salary or other remuneration from a U.S. source, other than an expense allowance or other reimbursement for expenses incidental to the visitor’s temporary stay.
L Visa – Intracompany Transferees
An employee working overseas for a foreign company has a second option available for longer-term work in the United States – the L visa for intracompany transferees. This visa is available to employees transferring from a foreign company to a related company in the United States, such as a parent, subsidiary or affiliate. There are two types of L visas, one for managers or executives and another for those with specialized knowledge.
The key criteria are as follows:
1. The foreign and US companies must have the requisite qualifying relationship, such as being a parent, subsidiary, affiliate, or branch. The companies cannot be unrelated to one another. USCIS will look at commonalities in ownership/control of the two companies in determining whether the qualifying relationship exists.
2. The employee must have worked for at least 1 year during the past 3 years with the foreign company.
3. The employee must have worked in, and be coming to work in the US in, the capacity as a manager or executive, or possess specialized knowledge regarding the company’s products, services, processes or procedures.
E Visa – Traders/Investors
E visas are available for investors wanting to start a business in the US, or expand their existing overseas business into the US. These visas, though, are limited to citizens of participating treaty countries. The list of these countries is available here: http://travel.state.gov/visa/fees/fees_3726.html
For the E-1 Treaty Trader Visa, some of the key requirements are that there must be ongoing trade between the foreign company and the US, not just one or two transactions, and more than 50 percent of the foreign company’s trade must between the US and the relevant foreign country.
For the E-2 Investor Visa, some of the key requirements are the investment must be substantial, although no fixed amount is required, and the business cannot be created simply to support the foreign investor and his or her family. It must have an economic impact in the United States. Employment creation is a focus of this visa.
J Visa – Intern/Trainee
J-1 Trainee Visa is a category of J-1 Visas that are issued pursuant to the U.S. Exchange Visitor Program. To participate in this program, an employer must apply with the Department of State to be a designated J-1 program sponsor. Designated J-1 Program sponsor’s can be found at: http://exchanges.state.gov/education/jexchanges/private.htm.
The jobs for which the J visa is typically available are for professional jobs, similar to the H-1B. It is not available for unskilled or casual labor jobs.
There are different categories of J visas, and some our readers may not be eligible for because they are just finishing earning U.S. degree, such as the internship category. Our F-1 and OPT readers however, may qualify for the training category, if they have five years of work experience acquired overseas in an area related to the training you are seeking.
Applicants may apply for the J-1 Trainee Visa through a designated organization via the Department of State’s DS-7002 form. The form describes in detail the Trainee’s training program. Each designated sponsor has its own fees, applications, and requirements.
Please be aware that certain J-1 Visa holders are subject to a 2-year foreign residency requirement, meaning these visa holders cannot change their status to that of H, L, K, or lawful permanent resident (LPR) until they have returned to their home country for at least 2 years, or received a waiver of that requirement.
H-3 Visa – Trainee
The H-3 Trainee Visa allows foreign nationals to receive training in an existing training program of a U.S. company. (This category does not apply to physicians. Other visa categories exist for physicians to pursue training in the United States). The four conditions required for the H-3 Trainee Visa are:
- Training is not available in the trainee’s home country;
- The trainee will not be placed in a position where U.S. Citizens and Legal Permanent Residents are normally employed;
- The alien will not engage in productive employment, unless incidental and required for the training; and
- The training will benefit the trainee in pursuing a career outside the United States.
Typically, the employer must establish it has a formal training program, including both classroom and on-the-job components. The one catch to this program for OPT students is it may be difficult to obtain H-3 classification. The regulations preclude applications for H-3 classification for extending stay in a training program undertaken through OPT. Some employers, however, have had success in obtaining an H-3 when their established training programs are longer than the OPT period authorized.
As mentioned at the start of this article, whether one or more of these visas is appropriate for you requires an in-depth discussion with a competent immigration attorney.