Editor’s note: Jennifer Parser is a member of the Labor and Employment Section and Immigration Practice Group of Ward and Smith, P.A.

Background

The H-1B visa is the most popular nonimmigrant visa used to permit employment of talented foreigners. Unfortunately, it is much too popular, and the annual quota of 65,000 H 1B visas is expected to be used up within the first two days of the April 1 filing date. This problem has been slightly alleviated by Congressional approval of an additional 20,000 visas annually to holders of a United States master’s degree or higher.

Even if your company files an H 1B application on time and gets a filing receipt from the U.S. Citizenship and Immigration Service ("USCIS"), this does not mean you have "won the lottery"; it just means that your company has "purchased a lottery ticket." This filing allows your prospective employee to participate in a random selection process instituted to equalize the chances of being eligible for one of these coveted visas. Paying the premium processing fee of $1,000 to have the application reviewed quickly does not increase the chances of your company’s application being selected; the application is counted against the annual visa cap when it first is received, not when it is reviewed.

So, if your prospective employee’s visa application is not selected to be processed before the cap is reached, does your company have alternatives to still be able to employ the educated foreign applicant who is perfect for the position available in your company? The answer is a qualified "yes."

Determine if the Prospective Employee or Your Business is Exempt from the H 1B Cap

If the prospective employee has been counted in the H 1B cap within the last six years (i.e., he or she received an H 1B visa for another employer), then the cap does not apply unless the prospective employee left the United States for at least one year and now is seeking to return for a full six-year term under a new H 1B visa. As the prospective employer, you have two alternatives for employing such an individual. The individual can return to the United States as a cap exempt H 1B and be permitted the balance of six years not used in the first H 1B stay, or the individual can enter the United States as a new H 1B for a full six years and be subject to the cap.

It also is possible that your business is exempt. Specifically, H 1B visa employees hired by an educational institution of higher learning and its affiliated nonprofit entities, a governmental research organization, or a nonprofit basic or applied research organization can obtain H1 B visas for this prospective employee without regard to the cap. Furthermore, the USCIS even will permit a business to claim the above exemption to the cap if the prospective employee will perform duties at one of the above qualifying organizations and if, in doing so, the employee is "directly and predominantly furthering the purposes of the qualifying institution."

If Not H 1B Exempt, What Other Work-Related Nonimmigrant Visas Are Available?

F 1 Visa Optional Practical Training Period. The F 1 visa is the visa obtained by persons who are studying at a college or university in the United States. After graduation, the holders of F 1 visas may apply for an additional year of Optional Practical Training, or "OPT," during which time the graduate may work for a United States organization. This provides the employer with an opportunity to observe the graduate’s ability before committing to the H 1B, and the training period is not counted toward the maximum six-year stay under the H 1B. Depending on when the OPT begins, the employer may be permitted to apply for an H 1B visa before the graduate has to leave the country.

J 1 visa. The J-1 visa is available for exchange visitors or trainees for periods of 18 to 42 months. It is issued through United States government-approved exchange programs such as the Association for International Practical Training. While this visa is designed primarily for educational training, there are research positions that may fit within the parameters of some of the programs. The major downside of the J 1 visa is that it often requires the visa holder to return to his or her home country for a period of time after completion of the exchange. While the foreign residence requirement can be waived in some cases through an application process to the U.S. State Department, this cannot be guaranteed. With careful planning, however, a J 1 visa sometimes can operate as a means to have an employee spend time at your organization, and then, following a hiatus, return as an H 1B in time for a new annual quota. Additionally, if such a visa is of frequent use to your business, your business can, through an application process to the U.S. State Department, become an authorized exchange program J-1 visa issuer.

B 1 visa. The B-1 visa is available to persons not employed in the United States for business-related stays of less than one year. It is applicable when a foreign business sends one of its employees to the United States. The B-1 visa holder must remain on the payroll of the foreign company, and the holder’s activities must be for the benefit of the foreign employer rather than a United States entity. Thus, it may be possible to have a business in the employee’s home country hire the employee, and then your company hire that employer to send the employee to your business as a consultant to work on a special project.

O 1 visa. The O 1 visa is intended for truly outstanding individuals in their field of expertise. For example, someone in the sciences might qualify for an O-1 visa if the individual has achieved international recognition or acclaim by winning a prestigious award, being the recognized inventor of an important patent, speaking as an expert at conferences in the individual’s field, or publishing as an expert in prominent media in the individual’s field. The O-1 visa is renewable indefinitely and can be useful as a transition to the first preference based permanent resident visa, which also is for renowned individuals in a recognized field of endeavor. If the O-1 visa holder’s renown is great enough to qualify for the first preference, then an application for permanent residency can be made without the need for a labor certification, meaning the avoidance of expensive and lengthy recruitment, advertising, and application to the U.S. Department of Labor prior to application for permanent resident visa status.

TN visas. The TN visa is available based on the North American Free Trade Agreement, or "NAFTA." This visa permits certain professionals from Mexico and Canada to come to the United States for one-year terms, renewable indefinitely.

H 1B1 visa. The H 1B1 visa is available through special treaties between the United States and Chile and Singapore. Under these treaties, 6,800 Chilean and 5,400 Singapore citizens are entitled to H 1B visas outside the cap.

• E 3 visa. The E 3 visa is available through a treaty with Australia. This visa permits applicants who otherwise would qualify for an H 1B visa to obtain a two year visa, renewable indefinitely.

H 1C visa. The H 1C visa is available for foreign nurses willing to work in underserved areas of the United States. These visas are granted for a maximum period of three years. Unfortunately, there are only 500 of such visas available annually.

E 1 and E 2 visas. The E visas are issued as the result of treaties of "navigation and commerce" between the United States and many countries. These visas, known as "treaty trader" and "treaty investor" visas, respectively, are meant for executives or highly specialized individuals who are to be employed by United States companies owned by a foreign parent. In order to qualify for an E visa, the prospective employee must hold the same nationality as the "country of origin" of the parent company. This is an exceedingly useful visa for United States subsidiaries of foreign parents, or for United States companies whose source of investment is from the home country of the individual seeking to be hired. Not subject to any quota, these visas are granted initially for two years and are renewable indefinitely.

L 1A and L-1B visas. The L-1A visa is available for employees who have been executives or managers of related companies for at least one of the last three years prior to taking a position in the United States. It usually is offered in an initial three-year increment and permits renewals for a total of seven years. In addition, the L-1A visa offers the holders the advantage of being pre certified for permanent United States resident visa status, meaning that the time consuming and expensive recruitment process for a labor certification from the U.S. Department of Labor is not required as part of obtaining a green card.

The L-1B visa is available to persons who hold specialized knowledge related to the company’s business with a foreign affiliate or parent company. The L 1B visa holder is permitted to remain a maximum for five years.

Conclusion

Through judicious planning coupled with careful timing, a company can use a number of nonimmigrant visa alternatives to the H 1B visa to bring foreign job candidates to the United States to work. Some of these alternatives also provide the employer with more time to consider the benefits of sponsoring the individual for permanent United States resident visa status, and may, in some cases, ease that transition.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Jennifer Parser practices in the Labor and Employment Section and Immigration Practice Group, where she concentrates her immigration practice on business immigration, particularly investor visas, both nonimmigrant and immigrant. Comments or questions may be sent to jgp@wardandsmith.com

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.