Alternative Visa Options Other Than The H-1B for Employing Foreign Workers

There are many other temporary work visas besides the H1B visa. Alternatives include the TN classification, E-3, H1B1, STEM OPT, L-1 intra-company transferee visa, J-1 trainee visa, H-3 trainee visa, O-1 extraordinary ability worker visa and E visa treaty trader/treaty investor visas.  This article will highlight these work visas.

U.S. companies may look at employing professional citizens of Mexico and Canada through the TN category. The TN was created specifically under the provisions of the North American Free Trade Agreement (“NAFTA”) to facilitate movement of business professionals between Canada, Mexico, and the U.S. There are no numerical limitations on TN classification and no minimum wage requirement for TN classification. The TN is limited only in that it is available for specific professional occupations listed under NAFTA. In addition, employers can request TN classification for a three year period and it can be renewed indefinitely in three-year increments.

For U.S. entities with foreign offices, the most popular option is the L-1 visa for intracompany transferees. To qualify for the L-1, a foreign worker must have been continuously employed abroad for at least one of the past three years by a qualifying foreign entity, such as a subsidiary, affiliate, branch, or joint venture, of a U.S. company. The L-1 visa is available for executives, managers, or employees with specialized knowledge. Similar to the TN, it has no prevailing wage requirements, and can be approved in 2-3 year increments, through there is a maximum of 7 years for executives/managers and 5 years for specialized knowledge workers.

Employers may also consider participating in J-1 trainee programs. A J-1 trainee is eligible to work for a U.S. employer and be compensated for training purposes as long as the terms of the training program are approved through a J-1 program sponsor. Most J-1 trainee programs can be granted up to 18 months. The trainee must be sponsored by a USIA-approved Exchange Visitor Program.

Another training visa that employers have relied on in recent years is the H-3 trainee visa. The H-3 nonimmigrant trainee visa is available for individuals who are coming temporarily to the U.S. for the purpose of receiving training in any field of endeavor. The H-3 trainee visa is only available if the following requirements are met: the proposed training is not available in the foreign national’s home country; the trainee will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed; the trainee cannot engage in productive employment unless such employment is incidental and necessary to the training; and the training will benefit the trainee in pursuing a career outside the United States. The H-3 visa is limited to two years. If the H-3 trainee has been in the US for two years, they are not permitted to then change status to an H or L visa category, until they have left the United States for 6 months.

The O-1 visa is used for individuals with extraordinary ability in science, sports, and business and for individuals with distinguished ability in the arts. Employers or agents can file O-1 petitions on behalf of a foreign national, by establishing the individual’s sustained national or international acclaim.

The E-1/E-2 visa is available for executives, supervisors, and essential employees of E-1/E- 2 employers. This visa is available to foreign nationals entering the U.S. solely to carry on substantial trade or develop and direct the operations of an enterprise in which he or she has invested (or the foreign parent company has invested in) or is actively in the process of investing a substantial amount. Once the E-1/E-2 company has been established, key employees from the treaty country can also enter under these visas. Those key executives, supervisors, and essential employees must have the same nationality as the treaty employer.

Employers may consider the H-2B non-agricultural temporary visas if the position is temporary in nature and the need is for one year or less. The employer’s need cannot be ongoing or continuous. While the H-2B visa has been mostly been filed for nonprofessional positions, there is no prohibition against the use of the H-2B visa for professionals. The employer has the burden of establishing the facts necessary to support a finding that the need is either a one-time occurrence, seasonal, peakload or intermittent need and there are no qualified US workers to fill the position. An H-2B employer must first obtain a labor certification for the worker before the employer can file a H-2B petition with the USCIS. It is also limited to foreign workers of certain countries, and the list of countries changes yearly.

For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.