Now that the deadline for filing cap based H-1B visa petitions has passed, employers may be looking for alternate ways to bring highly skilled foreign workers stateside to fill open positions and grow their businesses. The good news is that there are a number of other visas which have no annual numerical cap and other advantages over the H-1B that may be utilized to accomplish this goal. Below I discuss some of the available options.
The TN Visa for certain Canadian and Mexican Citizen Employees
The TN visa was created by the North American Free Trade Agreement(NAFTA) which aimed to liberalize trade between the US, Canada and Mexico, stimulate economic growth and give the NAFTA countries access to each other’s markets. As part of the treaty, special visa categories were created for Canadian and Mexican citizens seeking authorization to work in the United States. These visas are referred to as TN Visas.
In order to qualify for the TN Visa, the position in the United States must require a NAFTA professional. There are currently 63 listed eligible professionals in the treaty that include computer system analysts, engineers, management consultants, pharmacists and scientists. In addition to establishing that a NAFTA listed professional is required for the job, the employer must show that the duration of the job is specific. The employment must be for a full or part time temporary position that can have a duration of up to three years.
The future availability of this visa is uncertain as there has been a lot of talk from President Trump about how NAFTA was a “bad deal” for American workers and the economy. Despite this rhetoric and the promises to renegotiate NAFTA, no substantive changes to the treaty have been made which means the the TN remains a viable option for employers who are looking for professional employees.
The L-1 Visa for Intracompany Transferees
Some professionals may qualify for an L-1 visa that allows companies to transfer certain employees from a foreign entity to a US entity. There are a number of advantages that the L-1 visa has which include the lack of a numerical cap, no limitations on eligible professions and the availability of employment authorization for spouses of L-1 visa holders. In order to qualify for this visa, there must be a qualifying relationship between the a foreign and a US entity (parent, subsidiary, branch or affiliate). Additionally, the employee must have been employed by the foreign entity for one out of the three years immediately proceeding entry into the United States. Finally, the individual employee must have been employed in an executive, managerial or specialized knowledge capacity abroad and will be performing a similar role in the United States. If these requirements are met, the employee could qualify for an L-1 visa that will usually be valid for 5 or 7 years depending on the position.
The O-1 Visa for Extra-Ordinary Ability
The O-1 visa is a non immigrant work visa for the individual who possesses “extraordinary ability” in the sciences, arts, education, business or athletics. The main drawback of this visa is that it is limited to those who can clearly demonstrate a high level of achievement in their fields. As part of this process, the O visa requires a written consultation with an appropriate US peer group regarding the nature of the work to be performed and discussing the foreign national’s sterling qualifications. If the foreign national can meet this high bar, they will enjoy a number of benefits which include low processing costs, quick processing times and unlimited renewals.
Conclusion
The H-1B is the work horse American work visa, but unfortunately, competition for the visa is fierce. The USCIS typically receives approximately 200,000 petitions filed during the filing season for the available 85,000 visas. If you are an employer who missed the filing deadline or filed a petition that was not selected, there are other options that you can explore that may meet your needs.
