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Top 6 H-1B Alternatives for Foreign Professionals

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This webinar gives you an in-depth overview of the most common H-1B visa alternatives and strategies to obtain work authorization for your foreign born employees. Learn about E-2, L-1, O-1, TN and other visa options to hire qualified professionals now, extension of F-1 OPT EADs, H-1B cap exemptions, and green card options as alternative to H-1B visas.
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  • 1. TOP 6 ALTERNATIVES TO H-1B VISAS FOR FOREIGN NATIONAL PROFESSIONALS Ann Massey Badmus Cowles& Thompson, PC
  • 2. WELCOME Practice Leader Immigration Section Cowles & Thompson, PC www.badmuslaw.com Ann Massey Badmus Presenter
  • 3. ? Ask questions at any time ? Use your Q&A pane at the bottom of your screen to type and send your questions. ? Questions will be answered during the presentation and during the Q & A session.
  • 4. AGENDA H-1B Visa Overview Alternative Hiring Options Alternative Temporary Visa Options Green Card Options
  • 5. H-1B Visa Overview
  • 6. H-1B Nonimmigrant Visas A nonimmigrant (temporary) visa that allows a non-citizen to be employed in the United States for up to 6 years in a “specialty occupation” for a specific employer (“petitioner”).
  • 7. What is a Specialty Occupation? An occupation that requires highly skilled specialized knowledge and A bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation
  • 8. Employee Qualifications Have completed a U.S. bachelor’s or higher degree (or its foreign equivalent) or Have education, training, or experience in the specialty equivalent to the completion of such degree (3:1 rule) and Possess full state licensure if required to practice in the state of employment
  • 9. H-1B Numerical Limitations - “H-1B Cap” Quota of 65,000 new H-1B visas per fiscal year (except Free Trade Act (FTA) nationals) 20,000 per fiscal year for persons who hold US Master’s degrees or higher Applies to first-time H-1B or previously cap-exempt H-1B employees
  • 10. Alternatives to Cap-Subject H-1B Visas
  • 11. COMMON REASONS TO LOOK FOR OTHER OPTIONS H-1B visa cap application rejected Too late to apply for H-1B cap visa H-1B maximum limit of 6 years has been reached H-1B visa application denied
  • 12. HIRING OPTIONS – PREVIOUS H-1B EMPLOYEES H-1B candidates previously counted in the cap Remaining time on 6 year maximum period Inside or outside the U.S. Can apply any time
  • 13. Cap-exempt employers Universities and non-profit petitioners affiliated with post- secondary educational institutions Government research organizations and non-profit petitioners affiliated with government research institutions For-profit employers who place employee at a non-profit, university-affiliated facility for at least 50% of work week Cap-exempt beneficiaries Physicians who are beneficiaries of J-1 IGA waivers only (does not include hardship waivers or persecution waivers) HIRING OPTIONS – CAP EXEMPTIONS
  • 14. For profit employer offers part-time employment to the provider (ranges from 5 to 60 hours/week) The start date of the H-1B must be a date before the EMPLOYEE’s cap- exempt H-1B expires. Concurrent H-1B petition is filed and approved before current cap-exempt employment ends. HIRING OPTIONS – CONCURRENT H-1B
  • 15. F-1 Optional Practical Training (OPT) in the field of training for12 months 17 month extension available for STEM fields – www.ice.gov for list of occupations E-verify required for STEM extension HIRING OPTIONS – F-1 STUDENTS
  • 16. Temporary Visa Options – Country Specific H-1B1 Chile and Singapore E-3 Australian TN Trade NAFTA E-2 Treaty Investor or Trader
  • 17. Nationality – must be citizen of Singapore or Chile Specialty occupation and other requirements similar to H-1B Annual quota of 6,800 (1,400 professionals from Chile and 5,400 professionals from Singapore), never reached 18 month period of employment – no limit on extensions and can change to H-1B if available Dependent spouses cannot work H-1B1 Specialty Occupation Professional Visa
  • 18. Nationality – must be citizen of Australia Specialty occupation and other requirements similar to H-1B Annual quota of 10,500, never reached Two year period of employment – no limit on extensions Spouses can work upon USCIS approval E-3 Specialty Occupation Professional Visa
  • 19. Nationality – must be citizen of Mexico or Canada Profession must be listed on the NAFTA occupations list - 8 CFR § 214.6 No quota or limit on the number of TN visas each year Three year period of employment – no limit on extensions Dependent Spouses cannot work TN Trade NAFTA Professional Visa
  • 20. Nationality – owner and employee must be citizen of treaty country – http://travel.state.gov/content/visas/english/fees/treaty.html Investment must be substantial in a real, operating enterprise Treaty investor must have controlling interest (50% or more) in the company Essential personnel, professional, or managerial positions Spouses can work with USCIS approval Treaty Investor (E-2) Visa Program
  • 21. Temporary Visa Options – training specific H-3 trainee J-1 exchange visitor
  • 22. H-3 Trainee Training in any field of endeavor, not available in home country. Position must not be part of company operations No productive employment Two year maximum period of employment – no extensions Dependent Spouses cannot work
  • 23. J-1 Exchange Visitor Trainee Trainee - has a degree or professional certificate & min one year work experience outside the U.S., or has 5 years of work experience outside the U.S. Must use approved program sponsor Must be bona fide training program with detailed plan but some productive work possible 18 month maximum period of training program Spouses can work with USCIS approval Caution: Possible two year home residence requirement (check country skills list)
  • 24. Temporary Visa Options – General L-1 transferee O-1 extraordinary ability
  • 25. Temporary transfer of employee to the US to continue employment with parent, branch, or subsidiary of foreign business. L-1A executive or high level managerial employee or L-1B specialized knowledge employee Employee must have been employed with foreign business for continuous period of at least 1yr within the last 3yrs. Five to seven years maximum period of employment Spouses can work with USCIS approval L-1 Transferee Visa
  • 26. Must show sustained national or international acclaim in applicant’s field of endeavor Overall evidence must show applicant has “risen to the top of the field” Employer required and expert/peer consultation required Three year initial period of employment, unlimited extensions Dependent spouses cannot work O-1 Extraordinary Ability Visa
  • 27. Temporary Visa Options – Dependent Spouses H-4 (H-1B spouse) E-2 dependent E-3 dependent L-2 J-2Employment Authorization Document (EAD)
  • 28. Green Card Options
  • 29. Employer’s application for specific employee Employer must show no available and qualified U.S. citizen or permanent resident physician through local recruitment Employer must show ability to pay prevailing wage Employee must be qualified at the time of filing of labor certification EB-2 advanced degree, EB-3 professionals and skilled/unskilled workers EB-2/EB-3 PERM Labor certification
  • 30. General – applies to any profession if work is in national interest Physician – 5 years medical care in HPSA or MUA – specialties accepted Self-sponsored and self-employment possible – job offer not required Employment authorization document available while application is processing, for most applicants National Interest Waiver
  • 31. Must show sustained national or international acclaim in applicant’s field of endeavor Overall evidence must show applicant has “risen to the top of the field” Must show prospective contribution to the United States Can be self-sponsored but must show prospective employment in the U.S EB-1A Extraordinary Ability
  • 32. TIMELINE Immigrant Visa Number must be available. Visa backlog delays Physicians with IGA J-1 waivers cannot obtain permanent residence before completion of service Employment authorization available within 4 to 8 months while waiting for approval (in most cases) Permanent Residence (green card) within 1.5 to 3 years for most (subject to fluctuation)
  • 33. • Facts of each case are different. • Other options may be available depending upon employment circumstances. • The information provided here is general in nature and should not be relied upon for specific situations and is not legal advice. • Consult with an experienced immigration attorney to get the right advice and direction.
  • 34. QUESTIONS?
  • 35. FOR FURTHER INFORMATION Ann Massey Badmus 901 Main Street Suite 3900 Dallas, Texas 75202 214-672-2161 abadmus@cowlesthompson.com www.badmuslaw.com
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