Keeping Your VISA Options Open

One of the most common ways employers obtain visas for professional-level foreign workers is through the H-1B visa process. An employer can start petitioning for a prospective employee’s H-1B visa on April 1 of each year, and the foreign employee can receive his visa on October 1 (the beginning of the fiscal year). The employer need only show that she has the financial resources to pay her prospective employee in a professional-level position, and the employee need only show that he has professional-level education. In all, H-1B visas are fairly easy ad efficient ways to help a foreign professional start to work at your company, but H-1B visas also have many drawbacks.

Each year, the U.S. government only issues 65,000 visas for professionals with Bachelor’s degrees and 20,000 visas for professionals with Master’s degrees. These caps create tight deadlines for visa petition filings, and as the economy continues to pick up, the cap will be met closer and closer to April 1 which will make H-1B visas harder and harder to obtain.

This year (2013) the cap will likely be met not too long after April 1 and this means that any employer seeking to hire a foreign professional worker should look at some alternatives:

TN, L-1, and O-1 Visas
If the foreign professional worker is Canadian or Mexican, they may qualify for a TN visa under NAFTA. The applicant would only qualify for those with certain degrees; this list is exhaustive and can also be broad depending on experience. If the foreign worker has worked at an affiliate of the U.S. Company abroad for at least one year, an L-1 visa may allow the employee to transfer the United States for a temporary period of time. If the foreign national is a person of “extraordinary” ability, and has many accolades in his field of expertise, an O-1 visa may be the best fit. O-1 visas are especially helpful for researchers, high-achieving professionals, and other highly qualified individuals. With these types of Visas, it is imperative to demonstrate such “extraordinary ability” in order to qualify.

H-1B Porting
A foreign worker with an H-1B visa can also transfer to another U.S. employer, as long as the U.S. employer qualifies to receive the foreign professional. This transfer is possible because the H-1B worker has already been counted against the cap, and can now move from employer to employer, as long as he has time remaining on his H-1B visa. Foreign professionals can only remain in the United States as H-1B workers for a maximum of 6 years. Employers should note that H-1B porting does not apply to H-1B employees of cap-exempt employers (colleges, universities, affiliated institutions, and non-profit or government research institutions) because these foreign professionals were never counted against any cap.

Schengen Visa

Optional Practical Training (OPT)
Foreign students in U.S. schools receive one year of optional work authorization after graduation for practical training at U.S. companies. Companies can take advantage of this training option by employing students, and by transitioning these students into H-1B visa status as April 1 approaches. This one year of practical training work authorization automatically extends as long as the student has a petition for H-1B status pending. Also, students with science, technology, engineering, or math (STEM) degrees receive OPT for an additional 17 months, as long as their employer uses E-Verify. This means that STEM-OPT students can work at U.S. companies for a total of 29 months after graduation without requiring a visa.

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