What Are Your Options When You Can’t Get Your Star Employee an H-B?

By Greg Siskind

H-1B visas, the workhorse visa category for individuals with university degrees working in specialty occupations, has had a cap on numbers since 1990. That was before the first web sites, flat television screens were only seen in science fiction films and cell phones were called bricks because that’s what they resembled in size and weight. Unfortunately, the cap of 1990 is still with us.

Congressman Bruce Morrison, who was the chair of the House Immigration Subcommittee at the time and whose committee shepherded the bill through, told me a few years ago that they never believed we would get close to reaching the cap of 65,000. How wrong he was. Applications for the have exceeded 200,000 in the last few years and when the latest H-1B lottery is held in early April, all expectations are that the numbers will be similar.

With the odds stacked against getting an H-1B approved and the political environment not likely to make expanding the program soon a realistic option, what’s an employer to do?

First, it’s worth looking at seeing if you can get an H-1B without being subject to the annual cap. Employees that are working at colleges and universities, at non-profit research institutions and at non-profit employers affiliated with colleges and universities or non-profit research institutions are exempt from the cap. Even if you are a for-profit employer, you might still be able to claim exemption from the cap if your employee is working most their hours at an exempt location. For example, if you’re a for-profit physician group primarily servicing a teaching hospital, that could be the basis for claiming cap exemption.

Another option is if the employee is working concurrently in cap-exempt employment. So, if your new CEO is also teaching at the MBA program at your local college and the college files an H-1B for her, then your company can file a concurrent H-1B even if the H-1B cap has been hit if the employment with the college is continuing.

There are several other visa categories available that might be a fit and which do not have limits on their numbers or their limits are rarely reached. There are the H-1B cousin categories – E-3 and H-1B1. The E-3 is available to Australians. The H-1B1 is available to nationals of Chile and Singapore. The requirements for each are almost identical to the H-1B and neither category has ever had its statutory limit reached.

The TN visa is available in unlimited numbers to nationals of Canada and Mexico under the NAFTA Treaty. President Trump has suggested that the treaty will be re-negotiated, but for now and probably for a while, the visa categories under NAFTA remain intact. The TN category is limited to a list of occupations that has largely remained the same for a quarter century, but many popular occupations like computer systems analysts, nurses and even lawyers are on there.

Perhaps your company is majority-owned by foreign nationals or has a foreign parent and the nation is one of the 60+ countries that have a bilateral investment or trade treaty allowing for executives, managers and essential skills employees to get E-1 or E-2 visas? The employee needs to have the same nationality as the company and essential skills employees shouldn’t be doing jobs that can be filled by local workers. Unlike the H-1B, these visas allow applicants to file directly at a US consulate without having to be pre-approved by USCIS and spouses of E-1s and E-2s can get a separate work card allowing for employment with any employer.

The L-1 visa is also an option for executives, managers and specialized knowledge employees if the company doesn’t have a treaty, but does have overseas operations and an employee is being transferred who has been employed by the company abroad for at least a year. Like the E visa, spouses can work. And there’s a green card category that is available to many L-1s that has a fast track.

The O-1 visa is available to aliens with extraordinary ability. It’s open to individuals in the sciences, arts, sports, education and in business. Applicants must present evidence demonstrating they’ve reached the top of their field and have had sustained acclaim.

The J-1 exchange visitor visa is available trainees and individuals in that category can receive work authorization for up to 18 months. You’ll need to work with an approved exchange program and this visa often comes with a requirement that the J-1 visa holder return to his or her home country for two years when the training is finished. But that requirement can often be waived and spouses of J-1s can get work authorization.

Finally, sometimes it is possible to simply bypass the H-1B visa and go for a green card, particularly if you have a lot of time and if the person you’re hiring is not from a country with a long backlog in the green card category selected (this is especially a problem for nationals of India and China).

Greg Siskind Siskind Susser, PC Immigration Lawyers gsiskind@visalaw.com www.visalaw.com

Greg Siskind
Siskind Susser, PC
Immigration Lawyers