Beyond H-1Bs: Are There Other Options for Foreign Applicants?

By Russell Ford June 9, 2017

The H-1B visa cap deadline to hire skilled foreign workers has come and gone for fiscal year 2018. While the H-1B visa is incredibly popular, navigating the program requirements is stressful and the lottery can be unkind.

The primary frustrations for employers and foreign nationals alike in the H-1B process are that each year's allotment of visas is used up quickly and that visa recipients are determined by a lottery. For the last several years and including this year, the cap has been reached during the first week of availability and well before the end of the government's fiscal year.

So what are the options for those not selected for an H-1B visa? Employers and applicants should consider whether the applicants can qualify under visas granted to people from certain countries, whether the applicants can work in a different capacity than originally intended and whether the applicants can qualify under the O-1 visa.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Visas for People from Certain Countries

Applicants from Canada or Mexico may qualify for a North American Free Trade Agreement (NAFTA) professional visa, known as the TN visa, which allows professionals in certain industries to work in the United States for three years. Though the current administration has intimated that NAFTA could be repealed and replaced, Congress would need to dismantle the regulatory framework implementing the TN status. Any such changes to the TN program could result in tighter visa numbers, shortages of workers in certain occupations such as nursing and other issues related to business that would be met with strong opposition from employers.

The E-3 visa is similar to the TN visa, except it is for Australians. If an applicant is from a country that has a treaty with the U.S. supporting E status, it may be worth considering if he or she can open a business in the U.S. to support the potential employer's business and allows the individuals to qualify for E-1 or E-2 status. E-1 status is for an individual working for a company that is established to develop trade of goods between the U.S. and the E-1 home country. E-2 status is for an individual working for a company that is established by substantial, at-risk investments by the individual, who is from a country doing business under a treaty with the United States. The treaty established between the U.S. and the home country will determine which E status is available under that treaty.

In addition, applicants from Chile or Singapore may be eligible for an H-1B1 visa, which allows holders to stay in the U.S. for 18 months if they are filling a job that requires at least a bachelor's degree.

Working in a Different Capacity

Employers and applicants should also consider if it is feasible for the applicant to work in a different capacity than originally considered for the H-1B visa. For example, can the applicant work part time for a business, rather than full time as he or she would have under the H-1B visa, and attend school in the United States? If so, the applicant may be able to obtain an F-1 student visa.

An employer with an overseas entity could also consider hiring the applicant to work overseas for 12 months, giving him or her the opportunity to transfer to the United States in L-1 status.

O-1 Visas

Applicants and employers should also consider an applicant's standing in his or her field. If the applicant is considered to be of extraordinary ability, he or she may be able to obtain an O-1 visa. While O-1 visas require extensive documentation to obtain, they can be valuable tools for applicants who are standouts in science, business, education, the arts and certain media fields.

The H-1B program is popular partly because of its dual intent aspect—allowing an individual to make strides toward more permanent residence in the U.S., such as by applying for a green card, without impacting the underlying nonimmigrant status. (The L-1 has this dual property, too, but the TN, E-3, E-1/E-2 and O-1 do not.)

However, the annual cap and the lottery make the H-1B a stressful option for many employers and individuals. Perhaps there is hope with other visas that can enable a business to hire talented foreign nationals.

Russell Ford is an attorney with FordMurray in Portland, Maine.

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