The H-1B visa is the best known employment visa.
It allows foreign nationals to work in the United States for up to six years, and sometimes longer if the employee is sponsored for a green card.
Unfortunately, because the annual quota for the H-1B visa is so low, and the filing deadline is so inflexible, most employers cannot rely on being able to use this category. In 2013 there were 124,000 applications filed between April 1st and April 5th. Of those, only 65,000 were actually adjudicated through a lottery system. That means that within a week there were 59,000 disappointed candidates, as well as thousands of disappointed employers with positions still left to fill. So what can those employers do?
The good news is that there are alternative visas to the H1B, which fall into two separate categories:
- Those which bypass the need to apply for H-1B visas;
- Stopgap measures that allow the worker to stay in the country until he or she receives an H-1B visa.
1) Bypassing the H-1B visa process
Employment-Based Green Cards: When a worker has extraordinary ability as documented through their work experience or advanced degrees, they may qualify directly for an employment-based green card. For example, individuals who have served as CEO or CFO of a multinational entity overseas, or who have won many awards for his or her work, may be able to obtain a green card in a matter of months by paying an extra fee for premium processing. The alternative would be a year-long wait for an H-1B visa.
O-1 Nonimmigrant Visa: The professional qualifications that are encompassed within the O-1 category are diverse. They are frequently utilized by people that work in motion pictures or the arts, in business, as research scientists or as exceptional journalists. The O-1 visa allows the employer to onboard these individuals directly and quickly.
2) Stopgap measures
These alternative visas are viable options for employers who are interested in having someone work for them that qualifies for an H-1B visa, but he or she did not make the lottery. They may also be used by businesses that decide to hire a candidate after April 1st.
The H-3 Visa: This visa allows the employer to sponsor a training program that can last up to 18 months, after which the visa-holder may apply to change his or her status to an H-1B visa if the sponsor chooses to employ them.
The employer becomes a trainer for purposes of qualifying for the H-3 visa, ensuring that the trainee spends a minimum of 90% of his or her time doing some sort of training-related activity. This allows qualified candidates to gain the practical knowledge required to be an effective employee if and when the employer hires him or her.
J-1 Visa: This visa allows a private company to take on a foreign national through a training visa that permits paying a salary. It makes it possible to avoid a mandatory two-year foreign residence period. Should the employer wish to hire the employee on a permanent basis, the opportunity to apply for an H-1B visa remains viable.
If April 1st and the accompanying H-1B quota have come and gone, employers still have options. When an employer calls my office interested in hiring a worker from another country, I analyze the situation to see what options the law affords. Each case has a unique set of factors that must be considered, which is why the experience of a seasoned Immigration Law/Labor attorney can make the difference in your case.
How can I help your company find a solution?