November 26, 2008
We try to be proactive in our practice at our Washington DC office as we know employers will be banging on our doors closer to the dreaded April 1 deadline each year, and demanding that we file dozens of H-1b visa petitions for their prospective employees. I truly believe in educating the client because once armed with knowledge, they help me represent their interests and implement the best and most cost effective strategies that would achieve their business goals.
When it comes to H-1b visa petitions, I normally go through the program highlights. But once I review the regulatory requirements, I am usually presented with a question that is all too familiar: H-1b or Not to Be? In other words, employers usually ask me: can I exploit another endorse category for my employees? Is there another visa type that can be applied for? My answer usually is look at the statistics; in federal fiscal year 2007 for instance, there were 424,369 H visas issued at the various consular posts around the world while there was less than 200,000 other combined employment based non-immigrant visas issued.
Said in a different way, the H visa program is utilized more than twice of all of the combined non-immigrant work endorse categories that exist. This leads us to believe that the H visa category is of great utility to employers notwithstanding the somewhat cumulative regulatory requirements. Let me first review these regulatory requirements, and then let’s discuss other visa scenarios that I have been able to implement for my clients.
A. Basic requirements for the H-1b Visa Program:
- Labor Condition Application Attestation – An employer must attest, through the filing of a Labor Condition Application (“LCA”) that the H-1b validation employee will receive prevailing wages as those wages exist within the geographical area where the work will be performed. In addition, the employer must also provide certain notice at the worksite that it is about to file LCA and keep certain records showing its compliance with the LCA regulations. If the employer is deemed an H-1b endorse dependant (or a willful violator), then the employer must also attest that it has not laid off US workers 90 days before and after the filing of the LCA.
- Filing of the H-1b visa Petition – The filing of the H-1B endorse petition follows the electronic filing and approval of an LCA. In other words, the employer completes the LCA process prior to the filing of the H-1b visa petition with the USCIS. The filing of the H-1b endorse petition carries with a couple of requirements: a) the employer has the financial means to pay for the wages of the employee, and b) that the position is a specialty occupation.
- Filing Fees – The employer must also pay certain filing fees: The H-1b endorse program is the only non-immigrant validation type that has its own filing fee. They don’t come by cheap.
- Numerical Limitations – There only 65,000 visas given annually to H-1b endorse holders (1400 visas withheld for Chilean and 5400 visas withheld for Singaporean citizens) as well as 20,000 visas reserved for aliens who have attained a master’s degree from a US institution). Since federal fiscal year 2007, the USCIS has run out of visas on April 1, the first day employers were allowed to file for these visas.
B. Alternatives to the H-1B Visa Program:
There are several alternatives that could be considered, however, the H visa program is the most “playable” validation category as it includes L, O, TN, J, and E visas. For purposes of this article, I will discuss in greater details the L-1, O-1 and TN visa categories as viable alternatives to the H-1b endorse program:
- Intra-Company Transfer “L-1” Visa – The L-1 visa category is only a good alternative to the H validation program if all of the following exist at the time of filing the petition: a)the US employer must have a “qualifying business relationship” with another company outside the US such as parent/subsidiary, affiliate, or joint venture; b) the employee must had worked in the company outside the US for one out of the three years prior to his/her admission to the US in executive/managerial capacity or in specialized position; and c) the employee is coming to the US to fill a position that is executive/managerial capacity or in specialized position. One of the disadvantages is obvious: the US employer may not have a qualifying business relationship with another firm outside of the US. Another one is that the intracompany transferee must be coming to the US to primarily work on the employer’s premises. One great advantage is that the intracompany transfer program does not require the employer to pay the foreign national prevailing wages. Furthermore, there are not numerical limitations for validation type and holders of the L endorse category may hold immigrant and nonimmigrant visa intent simultaneously (this is referred to as “dual intent”).
- Aliens of Extraordinary Abilities “O-1” Visa – One avenue worthy of consideration is the O-1 endorse category. It is highly doubtful that this avenue is a viable alternative to the H visa program due to the high regulatory threshold requirements that it has. This visa category is reserved for those aliens who have risen to the very top of their career endeavors. For a complete listing of the regulatory criteria, please refer to our detailed article on O-1 visas. One disadvantage is the obviously high threshold criteria for acceptance into this category. An advantage is that the professional employee in this category will not be subject to the prevailing wage requirement. There are no numerical limitations to this validation type and holders of this visa enjoy dual intent.
- Professionals pursuant to NAFTA “TN” Visas – Certain Canadian and Mexican professionals are eligible to receive endorse and accept employment within their professional filed pursuant to NAFTA. Previously TN visa holders were only able to hold this visa category for one year renewable annually. As of October 18, 2008, USCIS amended the regulations allowing these nationals to receive this visa designation for three years. Holders of this visa type are not subject to any numerical limitations but holders of TN endorse category may not hold immigrant intent.
The H visa category carries the largest flexibility in terms of US employer’s ability to hire foreign nationals. Even though the filing fees are higher, the employer must pay prevailing wages and keep certain records pursuant to the regulations, there are relatively low threshold criteria for approval when compared to the other alternative visa types.