Using A Rugby Analogy: Other options to consider when H1B Visas are harder to come by than tickets to a Springbok vs. All Blacks Rugby Test
The H1B Visa
The H1B Visa is one of the more popular employment-based US visas; and on April 1, every year, the United States Citizenship and Immigration Services (aka “USCIS”) accepts new applications for the next fiscal year (starting October 1).
The H-1B Visa allows foreign workers in “specialty occupations” to enter the U.S. and work in a variety of fields, wherein the minimum of a bachelor’s degree (or its equivalent) is required to do the job. The H-1B Visa offers a wide range of employment possibilities and is a substantial first step toward permanent immigration. This visa is issued in three-year increments, for a maximum period of six years.
Applicants must have a U.S. Bachelor’s Degree in their specialty or a license in fields that require licensing, such as teaching or pharmacy. The visa is not self-petitioned, which means you will need a US employer to sponsor you. You can stay in the US for up to six years, after which, you are required to leave the U.S. for at least one year before being eligible again.
Your spouse and unmarried children, under the age of 21, may join you in the U.S. under H-4 status. However, they are not permitted to work unless they personally qualify for a work visa.
The H1-B Cap
What has made this visa so difficult to come by is the “cap” of only 65,000 set by the Congress under 8 CFR §214.2(h)(8)(i)(A) per fiscal year (October 1 – September 30). Of that number, 6,800 are reserved for nationals of Chile and Singapore, and an additional 20,000 numbers are reserved for individuals holding a master’s degree or higher degree from a U.S. institution of higher education.
In recent years, the cap has been reached earlier and earlier. In fact, in 2007 the USCIS received over 130,000 applications on April 2, 2007 (the first day applications were accepted for the 2008 fiscal year), whereas the previous year, the cap was not reached until July 26, 2006.
How to Avoid Standing in Line for Test Tickets
How to Avoid the H-1B Cap
An H-1B applicant can avoid the cap if he/she falls into a category of exempt employment.
In order to determine this exemption, the foreign national must have an employment offer when:
- The employer is an institution of higher education; or
- A related nonprofit entity; or
- A nonprofit research organization; or
- A governmental research organization.
If you are already on an H-1B visa, your extension of the same is not subject to the cap. The same is true where you have H-1B status with one employer and wish to transfer it to a new employer. Your new application for an H-1B visa with the new employer will not be subject to the cap.
It is important to remember that you may still be subject to your maximum stay of six (6) years under H-1B, and that your six (6) year period does not start over when moving to a different employer.
Furthermore, it is important for this calculation to consider if you have ever held an L-1 status as periods spent in either H-1 or L-1 status count toward either maximum limitation of each respective visa. There are certain exceptions to this general rule, and it is important to consult an immigration lawyer in this regard.
What Other Options do I have to Watch the Test Match?
Alternatives to the H1B Visa Category
Get some tickets to watch the game from your company’s suite at Loftus Versfeld or Eden Park
L-1 in lieu of H-1B
Businesses that function both in the U.S. and in their home country benefit from the best of what both areas have to offer. The L-1 visa is open to international organizations with offices in the U.S. who temporarily transfer employees to their U.S. office. This visa is sometimes referred to as the “intra-company transferee” visa.
To obtain an L-1 visa, you must be able to prove that you have worked for the non-U.S. company for at least one full year within the last three years as an executive, manager, or employee with specialized knowledge.
The L-1 visa enables the transfer of managers, executives, and specialized knowledge personnel to a U.S. office, subsidiary or affiliated company. This visa comes in the following categories:
- L-1A visas – for executives and managers.
- L-1B visas – for personnel with specialized knowledge.
L-1A workers may work for up to seven years. L-1B visa holders may work for five years.
Your spouse and unmarried children under the age of 21 may join you in the U.S. through L-2 status. L-2 status spouses are allowed to work in the U.S.
This alternative to the H1B visa has become more and more attractive to businesses, to the extent that more businesses are sending their skilled labor to work at their subsidiary company for one (1) year prior to coming to the U.S. The degree of certainty is higher, and besides, unlike H-1B, the spouse can actually work in the U.S. as well.
Watching the test match on TV in the parking lot of Loftus Versfeld
B1 in lieu of H-1B
Check out the State Department’s Foreign Affairs Manual (FAM) 41.31, Note 11, entitled “Aliens normally classifiable H-1 or H-3”. (Page 19 in this PDF document.)
This provision allows foreign nationals who qualify for H-1B status to receive B-1 visas to enable them to be admitted to the United Sates to provide service in a specialty occupation. The performance of such services by a person holding B-1 status would of course generally be prohibited, given the dichotomy inherent on the B-1 category between permissible “business” and impermissible “local employment or labor for hire”.
FAM41.31, Note 11, carves out an exception to this general prohibition, allowing a foreign national to obtain a B-1 visa in order to perform productive work and receive compensation for that work, provided certain conditions are met. The most important of these conditions is that the B-1 holder cannot receive a salary or any other remuneration from a U.S. source.
There are however, some practical issues with this option; and I recommend that you consult your immigration lawyer to further discuss this option as an alternative.
Watching the test match in your capacity as a “Super-Star”
O1 – Extraordinary Ability Category in lieu of H-1B
The O-1 Visa is for outstanding individuals. The visa enables people with extraordinary ability in the sciences, arts, education, business, athletics, motion picture or television industry to enter the U.S. for temporary periods of time.
The O-1 Visa must be petitioned by a U.S. employer, U.S. agent or foreign employer through a U.S. agent. Your spouse and unmarried children under the age of 21 may join you in the U.S. under O-3 status, but they may not work.
To qualify for O-1 status, a foreign national working in the science, education business or athletics must demonstrate that he/she is of a small percentage that have risen to the very top of the relevant field of endeavor and has received sustained national and international acclaim and recognition for achievements in the field of expertise.
This must be proven by either showing that the foreign national has been awarded a major and internationally recognized award, or that he/she can show that at least three (3) of the following criteria can be satisfied:
- Receipt of nationally/internationally recognized awards for excellence in his/her field; and/or
- Membership in an association in the field that requires outstanding achievements of its members, as judged by national or international experts in its field; and/or
- Published material in professional/major trade publications or media about the alien, concerning the alien’s work in the field; and/or
- Participation on a panel, or individually, as a judge of the work of others in the field; and/or
- Scientific, scholarly, or business-related contributions of major significance in the field; and/or
- Authorship of scholarly articles in the field in professional journal or other major media; and/or
- Employment is a critical/essential capacity for organizations and establishments that have a distinguished reputation; and/or
- High salary or other renumeration commanded.
This alternative is often times more stringent and few people for whom H-1B status was a first choice will have the level of achievement necessary to qualify. The various criteria spelled out for O-1 are certainly highly flexible and make it possible for persons of many backgrounds who are not legends in their own lifetimes to qualify. But it has to be recognized.
After consulting with your immigration lawyer on this option in determining if the foreign national has accumulated enough achievements to warrant approval of an O-1, this alternative to an H-1B visa may certainly be filed, with a caveat to some practical hurdles to overcome.
How about test tickets for Canadian and Mexican citizens?
The Trade NAFTA (TN) Category in lieu of H-1B
Under the North American Free Trade Agreement (NAFTA), certain citizens of Canada and Mexico are eligible to enter the U.S. to work temporarily under nonimmigrant TN status.
The following are the requirements to be eligible for the TN Visa:
- The profession must be on the NAFTA list.
- The foreign national must possess the necessary training for that profession.
- The proposed position must be classified as a professional position.
- The foreign national must work for a U.S. employer.
- The foreign national must be a national of Canada or Mexico
Canadian Citizens may apply for the TN-1 Visa, and Mexican citizens may apply for the TN-2 Visa. Please note that the process for obtaining a TN-2 Visa is much more complicated than that of the TN-1.
Spouses and/or unmarried children under the age of 21 are eligible to enter the U.S. under the derivative TD-1 and TD-2 visas. Family members may study in the U.S., but they are not allowed to work.
This visa is good for one (1) year and is renewable in one (1) year increments. This is a good way to work in the U.S., while trying to switch over to an H-1B or merely to bridge a gap between H-1B availability.
It is important to discuss this option with your immigration lawyer to see if this option is right for you as there are some limitations to this alternative option to the H-1B visa.
Due to our limited space in this article there maybe a few other options to H-1B Visas that can be considered and I recommend that you contact your immigration lawyer to have an “out of the box” discussion regarding these alternatives.
If the cap does not get raised, it is important to think of these various alternatives at least one (1) year ahead, and/or prepare for filing of H-1B visas early.
If all else fails, we’ll ship you off the Australia where my partner, Dr. Hugo can help you.
Till the next time… Go BOKKE!!
Disclaimer: Nothing in this article is meant to be perceived as legal advice. Each case has very specific facts, and it is important to consult an immigration attorney to advise you in navigating through these options. Furthermore, nothing in this article is meant to create an attorney-client relationship with Versfeld & Hugo