The H-1B is one of the most popular visa categories because it allows U.S. companies to temporarily hire foreign nationals in specialty occupations and provides lawful work authorization for those companies to pursue permanent residency, as needed. The caveat: For new H-1B filings, simply filing an initial or new H-1B petition does not guarantee acceptance. Selection is through a lottery.
U.S. Citizenship and Immigration Services (USCIS) only selects about 85,000 visa petitions (less than 65,000 regular cap petitions and 20,000 advanced degree petitions), and the annual cap is notorious for filling up quickly. The cap is typically open for the first five business days in April, and this year, on April 5, USCIS announced it had received enough H-1B visa petitions to meet the regular cap of 65,000 for fy2020. The advanced degree cap was met shortly thereafter.
The good news: There are alternative employment-based visa options for savvy human resources professionals to consider for their foreign national employees.
L-1 visa: Company transfers
The L-1 visa has two variations: the L-1A Intracompany Transferee Executive or Manager and the L-1B Intracompany Transferee Specialized Knowledge.
- L-1A enables U.S. employers to transfer a manager or executive from an affiliated foreign office to its office in the U.S. An L-1A executive can be defined as an individual who can make major decisions without much oversight, while someone in a managerial capacity supervises or directs work of professionals. The L-1A manager also could manage the organization or department, subdivision, function or component of the organization.
- L-1B is a different way for U.S. employers can transfer a professional employee from an affiliated foreign office. This individual has to have specialized knowledge relating to the company’s interests or advanced knowledge in a specific industry or product as an example.
However, in order to be eligible for either L-1 visa, the employee needs to have worked at the affiliated foreign office for at least one continuous year out of the last three years preceding the filing of the visa petition.
TN NAFTA professional
The North American Free Trade Agreement not only eliminated trade barriers between the U.S., Mexico and Canada, it also created an employment-based visa known as the TN visa. The TN enables Canadian and Mexican professionals in specific specialty occupations to work in the US.
There are a few benefits for the TN visa that make it an attractive alternative option. First, there is no cap on the number of TN visas distributed over the course of a year. Second, Canadian citizens can directly apply for the TN at the Canadian border, and Mexican citizens can apply at a US consulate.
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In September 2018, the three countries agreed to a new trade deal that would replace NAFTA with the United States-Mexico-Canada Agreement (USMCA). Though it has yet to gain approval in Congress, the deal would keep the same provisions of the TN visa in place.
O visa: Special distinction
The O-1 visa is unique because it is specifically designed for individuals who possess extraordinary ability in the arts, sciences, business, education and athletics. These individuals are truly at the top of their field and have been nationally or internationally recognized for achievements. There are three variations of the O visa, each with specific distinctions.
This is the act of sending a foreign national to work in an affiliated global office as a way to retain the employee until they can secure an employment-based visa. While not a visa like the L-1 or TN, an overseas assignment is an alternative companies can consider if a foreign national’s visa petition is not selected in the lottery. When exploring this option, keep in mind that visa requirements vary by country, so it’s best practice to assess if this is even a feasible option before initiating the process.
The H-1B visa is highly sought after and only available in limited quantities. Because of this and today’s competitive talent landscape, it might make sense for some companies to evaluate the alternative visa options available for their sponsored employees. For more information about H-1B visa alternatives, see The Definitive Guide to H-1B Alternatives.