At H-1B season’s close, employers begin weighing alternatives

15 Apr 15

UNITED STATES

Now that H-1B cap season has closed, many employers will be searching for other options for foreign skilled workers who were not selected in the lottery.

Alternatives to H-1B visas have become increasingly important to business planning in recent years. This week, a record 233,000 H-1B cap petitions were filed, from which the lottery selected a maximum quota of 85,000 (which includes the 20,000 reserved for holders of advanced U.S. degrees), leaving companies to find other ways to retain thousands of candidates who will not obtain H-1B status.

Some other visa options for temporary workers are:

F-1 student visas. Recent graduates can extend F-1 status allowing them to perform work directly related to their major area of study for up to 12 months through Optional Practical Training (OPT). Students who hold degrees in science, technology, engineering or mathematics that appear on the STEM-Designated Program List may apply to extend their OPT status for an additional 17 months, as long as their employer is enrolled in E-Verify. An option for foreign employees whose H-1B petitions were rejected this year is to apply for F-1 status by enrolling as a full-time student at a Student and Exchange Visitor Program (SEVP) approved school, and to apply for OPT or Curricular Practical Training (CPT), which allows employment during the course of study under certain circumstances.

J-1 exchange visitors. Employers may explore the J-1 exchange visitor visa, typically for students and graduates of foreign universities. Companies may bring a foreign candidate to the U.S. as a trainee for up to 18 months or as an intern for up to 12 months. It is important to note that employers may not use this visa category to fill positions that are filled or would be filled by either full-time or part-time employees. This visa category is also subject to other limitations; for example, exchange visitors must not only prove their intent to return to their home country but some foreign nationals are required to return to their home country for two years at the end of their J-1 status.

O-1 “extraordinary ability” visas. Candidates who have demonstrated excellence in business, science, education, art or athletics may qualify for an O-1 visa. This category requires evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.

L-1 intra-company transfers. Companies with international offices may transfer foreign employees in managerial or specialized knowledge positions from a foreign branch, affiliate, parent, or subsidiary office to their U.S. offices under the L-1 program. However, only employees who have worked for at least one year in the company’s foreign operations are eligible. Some companies may consider sending select candidates to work abroad and then apply for them to return to the U.S. with L-1 status the following year. Individuals possessing “specialized knowledge” (L-1B visas) may stay for up to five years in the U.S., while managerial workers (L-1A visas) may stay for up to seven years.

Country-specific nonimmigrant visas. Certain foreign citizens qualify for temporary, nonimmigrant status based on country-specific agreements with the U.S. These include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens, and TN classification for citizens of Canada and Mexico for professional categories enumerated in the North American Free Trade Agreement (NAFTA).

BAL Analysis: Employers are encouraged to work with their BAL attorney to explore alternatives for their current job candidates as well as to map out long-term options for their workforce.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.