H-1B Visa Alternatives: Options Available to Those Unlucky in the H-1B Lottery: Part 2

By Becky Sigmund and John Hill

 

This article is the second of a two-part series on H-1B alternatives.  The first part appeared in this blog column on July 20, 2017. 

Many South Carolina companies use the H-1B visa category to employ foreign workers who are skilled professionals.  This visa category is subject to an annual quota – or Cap.  April 1, 2017, marked the first day U.S. Citizenship and Immigration Services (USCIS) began accepting this year’s H-1B Cap petitions.  By April 7, USCIS closed the H-1B Cap door, having received 199,000 petitions for 85,000 available H-1B visas.  That means applicants had a 42% chance of being selected in what has now become the “H-1B Annual Lottery.”  Although employers may file again in next year’s H-1B lottery, often this does not resolve the issue of continued employment for the sponsored worker. Nonetheless, South Carolina employers may have options to keep or hire those unlucky H-1B applicants.

 

E-1 Treaty Trader or E-2 Treaty Investor

E-1/E-2 visas are created through a commerce treaty signed by the U.S. and another country to promote investment and trade between the signatory countries.  Only 80 plus countries have qualifying treaties that support E-1 and/or E-2 visas including Germany, Japan, France, Mexico, United Kingdom, and Canada, among others.  The E visa is an option only for citizens of the foreign treaty country.  The company and the individual must meet certain requirements to qualify for this visa.

The E-1 treaty trader visa is suitable for a foreign national who has an international employer that has a significant amount of trade between the two treaty countries.  The E-2 treaty investor visa requires either the individual or a company to invest a substantial amount in the United States.  For either visa, the foreign national must be coming to manage or direct the business or to provide essential skills to support the trade or investment.

International employers in South Carolina should consider the E visa if (1) the U.S. company is ultimately owned by citizens of a treaty country and has significant trade or investment, and (2) the foreign worker is a citizen of that treaty country.

 

TN for Canadian and Mexican Professional Workers

The North American Free Trade Agreement created the TN visa classification to allow certain professional citizens of either Mexico or Canada to work for U.S. employers in one of approximately 60 listed occupations ranging from accountant to engineer to computer systems analyst. Unlike the H-1B, the TN is not subject to an annual quota, and the TN worker is eligible for 3 year stays that can be extended indefinitely.

 

H-1B1 for Chilean or Singaporean Professional Workers

Like the H-1B, the H-1B1 visa is available to degreed professionals. However, the visa is driven by treaties between the U.S. and Chile and the U.S. and Singapore respectively.  Thus, the H-1B1 is only available to citizens of Chile or Singapore. An advantage of the H-1B1 allows the worker to apply directly at a U.S. Consulate abroad thereby bypassing the USCIS, and it can be extended indefinitely.

 

E-3 for Australian Professional Workers

The E-3 is also treaty driven, created by a treaty of commerce between the U.S. and Australia.  The E-3 is available only to degreed Australians who will hold a professional position.  E-3 visa holders are eligible for 2 year stays that can be extended indefinitely.  The spouse is eligible to apply for a general work authorization document.  This option may be attractive for an employer who employs any professional Aussies (or their spouses).

 

Cultural Qs and Ps

The Q-1 and P-3 visas are considered the cultural visa options and may apply to a unique group of employees supporting employers that facilitate international cultural exchange. The Q visa is specific to an international cultural exchange program that allows for practical training and employment while sharing history, culture and traditions of the worker’s home country.  Generally the employer must administer a cultural exchange program to petition for Q visas for the workers and the maximum stay is 15 months. The better alternative may be the P-3 visa that allows employers to petition for workers to come to the U.S. to develop, interpret, represent, coach or teach a unique or traditional ethnic, folk, cultural, musical, theatrical or artistic performance or presentation. The work can be commercial or noncommercial in nature.  As long as there is a cultural exchange of knowledge, either the P-3 or the Q-1 could be a creative option to consider.

 

Filing for Permanent Residency/Green Card

For some employers and their foreign workers, filing for employment-based permanent residence or “green card” may be a viable option.   Normally, employers seek to hire a foreign worker on H-1B or other temporary status and then later, the employer considers the green card sponsorship.  However, because of the challenges faced with the H-1B lottery, employers often have to consider the option of sponsoring the green card directly, without first going through the H-1B visa option.  However, the employment based green card process can be a long process and for some workers it is not an option due to the visa backlogs applicable to the worker’s country of birth.  Obviously, the suitability of this option depends on a number of factors, including education, experience, country of nationality and the ability to maintain status in the U.S. or work abroad until the process is complete.

Depending on the facts of the case, South Carolina employers may be able to look to visa options other than the H-1B to keep key international workers employed.  Looking at such alternatives will be particularly important now, given the current climate and heighten scrutiny of H-1Bpetitions.

 

Ogletree Deakins has one of the largest business immigration practice groups in the Carolinas with eight immigration attorneys in South Carolina alone.  Contact Rebecca Sigmund at [email protected] or John Hill at [email protected].