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

U.S. Citizenship and Immigration Services received 201,011 cap-subject H-1B petitions this year. That number is up by more than 10,000 from last year and well above the cap of 65,000 visas plus an 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 denials and requests for evidence from employers.

Depending on an employee’s particular circumstances, however, alternative visa routes may be available. 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 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 for a 24-month extension of their one-year OPT period. USCIS updated the requirements on the placement of STEM OPT students at third-party worksites in 2018.
  • 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 intracompany 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.
  • 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 renegotiated NAFTA, but the United States-Mexico-Canada Agreement, as the new deal is called, has not been ratified. The mobility provisions that provide for the “temporary entry of business people” in the new agreement are largely the same as under NAFTA.
  • E-2 Treaty Investor visas. Employers and employees who are nationals of a country holding a treaty with the U.S. may qualify for E-2 visas. Although this route has traditionally been used by individual investors and smaller employers, in recent years, large established companies have started to leverage E-2 visas to hire and retain executives, managers and other essential employees in the U.S. The list of treaty countries is available here.

BAL Analysis: Employers are encouraged to work with their BAL attorney to explore alternatives for current candidates and to consider long-term strategies for their workforce, especially in light of the current environment and high demand for H-1B visas.

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

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