President Trump’s June 22nd Executive Order was arguably the most aggressive assault on U.S. business immigration of his administration – tying COVID-era unemployment rates to suspension of new H-1B, L-1 and J-1 visas issued outside of the United States. The suspension does not impact foreign nationals already in the United States in a valid visa status.
While the visa suspension is disruptive to companies that rely on foreign talent, there are still options for professional talent from abroad. If you have an employee who was impacted by the visa suspension, consider the following visa alternatives.
H-1B, L-1 and J-1 Visa Alternatives
Employer Sponsored “Green Card”
If you have identified an individual who will be asset to their business, we highly recommend sponsoring the individual for permanent resident status (aka “Green Card”). This will most likely require initiation of the PERM (or labor certification) process as soon as possible.
During the PERM process, you will be required to show there are no minimally qualified US workers ready, willing, and able to fill the offered position. From start to finish, the PERM process takes between 10 months and a year. The Department of Labor is continuing to update PERM requirements due to COVID-19 work at home orders, and we are not seeing significant disruptions to the process at this time. If you have questions about the PERM process, we are happy to offer complimentary consultations. Once the PERM process is complete, many employees are eligible to file their I-140 and I-485 applications concurrently. All employees will move into the I-140 process, but those that can file a concurrent I-485 Application have the ability to secure an Employment Authorization Document (EAD) with that filing while they wait out the completion of the green card process. This EAD allows that individual to continue or begin employment with your organization and continue in that employment until completion of the green card process. Once the green card is issued, this US Lawful Permanent Resident Status will provide the individual with continued authorization to work for you.
O-1 Visa – for Employees with Extraordinary Ability
If the candidate has an advanced degree, extensive publications/citations, awards in their field, and/or other evidence to show they are one of the leading individuals in their field of work, an employer can sponsor on an O-1 Visa. While the O-1 visa requires robust documentation, it has numerous benefits. And because the regulations require that the individual be amongst the best and brightest in their respective field, one key aspect of a solid O-1 case can be defining that field in a targeted and systematic way.
While it can take some time to gather together all of the documentation and evidence you need to apply for an O-1 Visa, the approval period is actually quite fast. Once everything is submitted, O-1 visas are typically approved or denied within a few weeks, which is faster than the H-1B visa or most other options. Additionally, O visas can lay the groundwork for an EB-1 green card petition, eliminating the need to go through the PERM process.
If the candidate is from an E Treaty Country, the candidate may be able to start their own company as a trader or investor. This company could then contract out the candidate’s services to your organization in a role similar to that of the H-1B application. See our E-2 guide for more information, or contact us to learn more about how to utilize this option.
B-1 in Lieu of H-1B Visa or L Visa
In some cases, and especially for multinational companies, a B-1 visa can be used in lieu of H-1B rather than the “traditional” H-1B. In order to use the B-1 visa, if the following conditions apply to your specific situation:
- The employee’s compensation will come strictly from the Overseas Company – The applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the individual’s temporary stay.
- The overseas company must be affiliated with U.S. Company that will “employ” the individual – If the U.S. company has a separate business abroad, the salary paid by such foreign entity is not considered as coming from a “U.S. source” under the Foreign Affairs Manual. However, in order for a company to be considered a “foreign” entity, the company must have an office abroad and its payroll must be dispersed abroad.
- The Employee must meet all other B-1 Requirements – The applicant must have a residence in a foreign country, which they do not intend to abandon; intend to enter the United States for a period of specifically limited duration; and seek admission for the sole purpose of engaging in legitimate activities relating to business.
In addition to the above requirement, the employee must meet “traditional” H-1B requirements:
- They must have at least a Bachelor Degree, or equivalent, in a field related to the offered position.
- They must be working in a specialty occupation, i.e., the position must require a Bachelor Degree in a specific field (or its equivalent).
Treaty Country Visas (TN and E-3)
If the candidate is a citizen of Canada or Mexico, an employer can sponsor on a TN visa; likewise, if the candidate is from Australia, they qualify for an E-3 visa.
The TN visa can be used for certain professional occupations, as long as the beneficiary has the necessary education and accreditations. As a nonimmigrant visa, these visas are a temporary solution – an individual cannot apply for green card status while in the U.S. on TN status. TN visas are initially valid for three years. For more information, click here.
For Australian citizens, the E-3 classification is a viable alternative to the H-1B or L-1 visa. Those using this option can skip any USCIS petition requirements, and once approved, can work in the US for two years. Unlimited extensions (of two years each) can be received. This classification has a limit of 10,500 applicants per year and requires the applicant to have a bachelor’s degree or foreign equivalent. To apply, the employer must obtain a certified Labor Condition Application and have it filed with the Consulate.
H-3 in Lieu of J-1 Visa for Trainees or Interns
The J-1 visa is a popular training visa, used by multinational companies and institutions for immigrant trainee programs. In lieu of the J-1 visa, institutions should consider the H-3 visa, used for training programs up to 24 months. The H-3 candidate must prove that the proposed training that they will receive is not available in their home country. They also cannot displace US workers or engage in non-incidental employment.
Remember, the visa suspension DOES NOT apply to all visa holders in those categories, including:
- Individuals who were inside the United States on the effective date of the Proclamation (12:01am on June 24, 2020);
- Individuals with a nonimmigrant visa that is valid on the effective date of the Proclamation
- Individuals with an official travel document other than a visa (e.g. transportation letter, advance parole document), valid on or before the effective date of the Proclamation that permits them to travel to the U.S. to seek entry or admission.
- Legal permanent residents (“green card holders”) of the U.S.
- Spouses or children of U.S. Citizens
- Individuals seeking entry to provide temporary labor essential to the U.S. food supply chain; and
- Individuals whose entry would be in the national interest as determined by the Secretary of State and the Secretary of Homeland Security.
The immigration landscape is changing every day. If you have questions, contact us for a complimentary consultation about your specific needs.