Employers encouraged to consider additional options after H-1B lottery

26 Apr 18

UNITED STATES

High demand and increased scrutiny continue to make obtaining an H-1B visa a challenging prospect. Employers are encouraged to consider alternatives for individuals who will not obtain an H-1B visa this cap season.

U.S. Citizenship and Immigration Services received 190,098 cap-subject H-1B petitions this year. That number was down 4.5 percent compared with last year’s total, but still well above the H-1B cap of 65,000 visas plus the additional 20,000 for individuals holding a U.S. master’s degree or higher. On top of that, President Donald Trump’s administration has moved to tighten up the H-1B program, increasing the number of requests for evidence from H-1B applicants and saying it will require additional information from employers who assign H-1B workers to third-party worksites.

Alternative visa routes may be available, depending on workers’ particular circumstances. Some common alternative routes for temporary foreign workers include:

  • F-1 Optional Practical Training. Newly graduated foreign students may extend their F-1 student status through Optional Practical Training (OPT) if they seek to perform work directly related to their major area of study. A 2016 regulation allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to apply to extend their one-year OPT period for an additional 24 months.
  • J-1 exchange visitors. Companies may bring foreign students and graduates of foreign universities to the U.S. as trainees for up to 18 months or as interns for up to 12 months. One of the limitations to this visa category is that employers may not hire a J-1 visitor for a position that is filled or would be filled by a full-time or part-time employee. Exchange visitors also must prove their intent to return to their home country and in some cases must return to their home country for two years at the end of their J-1 status.
  • O-1 “extraordinary ability” visas. Individuals demonstrating extraordinary ability 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. The L-1 category allows companies with international offices to transfer employees in managerial or specialized knowledge positions from a foreign branch, affiliate, parent or subsidiary office to their U.S. offices. Only employees with at least one year of experience in the company’s foreign operations in the last three years are eligible. Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and applying for L-1 status thereafter. L-1B visas for individuals with “specialized knowledge” are valid for up to five years, while L-1A visas for managerial workers are valid for seven years.
Companies should anticipate tightening of rules on L visas, including greater oversight. Last year, the USCIS appeals panel ruled that companies whose L-1B employees remain on foreign payroll must meet U.S. minimum-wage requirements under both federal and state laws. Companies are encouraged to consult with their BAL professional for advice on individual cases.
  • Country-specific nonimmigrant visas. Under bilateral agreements, certain nationalities are eligible for temporary nonimmigrant visas. 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 in designated professional categories under the North American Free Trade Agreement. The Trump administration is working to renegotiate NAFTA with Canada and Mexico, and Trump has signaled that he may withdraw from the agreement if he is unable to achieve his goals in negotiations. For now, however, TN visas remain an option.
  • “BILOH.” The B-1 in lieu of H-1B, or BILOH, is an option in limited circumstances. The B-1 is a visitor visa and the BILOH is being closely scrutinized for misuse, so companies should consult with their BAL attorney before considering this route.

BAL Analysis: Employers are encouraged to work with their BAL attorney to explore alternatives for current candidates and to map out long-term strategies for their workforce.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

Copyright © 2018 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.