ALTERNATIVES TO THE H-1B VISA
By Maria Julia Bocca-Mollo
In light of the limited amount of H-1B visas available per fiscal year (currently only 65,000 per year), it is important to keep in mind that there are other alternatives that can help you bring needed foreign workers to the United States. Aside from analyzing whether you are exempt from the annual H-1B cap (yes, you might be cap-exempt), you also might want to consider some of the other nonimmigrant visa categories available that are not subject to this limitation.
Here are some of the choices:
B-1 in lieu of H-1B
This visa allows employees of a foreign company to come to the United States to participate in a project or training program. Only for short-term assignments, this classification requires that the foreign national continue to be employed by the foreign company and return to the foreign company after the project in the United States has been completed. The visa holder cannot receive a salary or other remuneration from a U.S. source except for an expense allowance or reimbursement for incidental expenses.
Trainee visas: J-1 and H-3
These visas allow foreign students and professionals to enter the United States for the purpose of training or developing their careers with a U.S.-based host organization for up to 18 months and 24 months of training, respectively.
Intracompany transferee: L-1 visa
One of the most useful tools available for international companies, the L1 visa category applies to foreign workers who work for a company with a parent, subsidiary, branch, or affiliate in the United States. These workers come to the United States temporarily to perform services either in a managerial or executive capacity (L-1A), or one which entails specialized knowledge (L-1B) for a parent, branch, subsidiary, or affiliate of the same employer that employs the professional abroad. The employee must have been employed abroad for the affiliated company on a full-time basis for at least one continuous year within the last three-year period to qualify. L-1 visas are issued up to a maximum initial period of three years and can be extended for up to seven years for L-1A managers and five years for L-1B specialized knowledge personnel.
Treaty Trader/Investor: E-1/2 visas
These visas are available to nationals of certain countries that have trader and/or investor treaties with the United States. The E-1 Treaty Trader visa allows you to establish and run a U.S. business that has substantial trade with your home country. The E-2 Treaty Investor visa allows you to establish and run a business with a “substantial investment”
E visas are issued initially for two years and can be extended almost without limit.
Individuals of Extraordinary Ability: O-1 visa
The O-1 visa category is reserved for individuals of “extraordinary ability” in the sciences, arts, education, business, or athletics. To qualify as an individual of extraordinary ability, applicants must demonstrate that they possess “a level of expertise indicating that the person is one of a small percentage who has risen to the top of a field of endeavor.” Even though it sounds like only Nobel-prize winners can qualify, the truth is that the USCIS has dropped the standard, and the O category has become a useful alternative category. An initial O-1 petition can be filed for up to a three-year maximum employment period. Subsequent extensions may be for no more than one year at a time. There is no limit to the number of extensions possible.