Best Lawyers® — 30/01/2018 at 15:00

H-1B Visas: Limits and Alternatives

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For many U.S. employers, the new year means the beginning of H-1B cap season. Between now and what will likely be a brief filing window at the beginning of April, employers will assess their 2018 hiring needs and determine whether they have existing U.S.-based employees who will require an H-1B visa to continue working in the United States or foreign-based employees for whom they’d like to secure an H-1B visa as of October 1, 2018, which is the beginning of the government’s next fiscal year.

Over the past few years, United States Citizenship and Immigration Services (USCIS) has accepted for processing roughly 30 percent of the H-1B petitions filed with the agency as the demand for visas has far exceeded the annual supply of approximately 85,000.

Given the strong U.S. economy and low unemployment rate for college-educated professionals, we expect this season again to leave many employers without the ability to use the H-1B program, which is otherwise available to foreign professionals with specialized academic backgrounds or the equivalent.

As a result, employers will need to consider alternatives, including the following:

- Job candidates who are already working in the United States with an H-1B visa for another employer are typically not subject to the annual quota. These individuals were likely counted against the annual quota when their current employers sponsored them, and U.S. law allows H-1B professionals to spend six years working in the U.S. and for multiple employers before they again must be counted against the quota.  

- Free trade agreements may permit foreign professionals to work in the United States. The North American Free Trade Agreement (NAFTA) permits U.S. employers to hire certain Canadian and Mexican professionals in specific occupations in “TN” visa status. TN occupations include accountants, economists, lawyers, engineers, computer systems analysts, and teachers, among many others. TN status may be granted in three-year increments and can be renewed indefinitely, provided the employee does not intend to reside in the United States permanently. The U.S. also has free trade agreements with Singapore and Chile, which permit 5,400 Singaporeans and 1,400 Chileans per year to hold H-1B1 visa status and work for U.S. employers in professional occupations. Another free trade agreement with Australia permits up to 10,500 Australian citizens per year to hold E-3 visa status and work for sponsoring U.S. employers, also in professional occupations. While H-1B1 and E-3 visas differ somewhat from H-1B visas (mostly in terms of the validity of the visas and periods of stay), they are nearly identical to H-1B visas in terms of substantive eligibility, but unlike H-1B visas, remain available all year long.

- Foreign students with F-1 visas are typically granted one year of work authorization (Optional Practical Training [OPT]) upon completing their degree programs. For students receiving degrees in certain STEM fields, additional OPT may be requested and granted for a total of three years, provided the employer is enrolled in the government’s E-Verify program and works with the student to complete and submit detailed forms and annual evaluations to the student’s college or university.

- The O-1 visa category may be available when recruiting highly experienced professionals. Reserved for individuals of “extraordinary ability,” there is no quota and the work permit, initially issued for up to three years, can be renewed indefinitely, provided a U.S. employer is able to demonstrate its need for the employee’s distinguished expertise. While an O-1 visa is not feasible for junior staff, it may be available to foreign nationals who have gained and sustained recognition and acclaim in their particular field, specialization, or sub-specialization. Evidence of extraordinary ability may include letters from peers and current and former employers attesting to an individual’s reputation and contributions in the field, industry prizes or awards, media coverage, published works, or other documentation applicable to accomplishments in the specific field. While this standard is high, when H-1B visas are unavailable, employers should examine the feasibility of an O-1 visa for highly paid, highly experienced professionals they seek to hire into senior management or executive roles, or roles requiring highly distinguishable specialization.

- Employers, especially those with foreign operations, should also consider the feasibility of employment abroad when a U.S.-based option is not available. This could be a permanent placement or one where the employer intends to sponsor the employee again in the future; e.g., under the H-1B quota in a subsequent year or perhaps as an intracompany transferee using an L-1 visa once the employee has worked for an affiliated company abroad for at least one year.

- Finally, certain employers are exempt from the H-1B quota and may sponsor qualified foreign professionals for H-1B visas throughout the year. This includes most U.S. universities and certain related non-profit organizations, as well as private and governmental non-profits that are principally engaged in basic or applied research.

To ensure the retention and acquisition of key foreign talent, employers should consult with immigration counsel on the feasibility of H-1B sponsorship and/or whether alternatives are available as early in the new year as possible.


Andrew Greenfield is managing partner of the Washington, D.C., office of Fragomen, Del Rey, Bernsen & Loewy, LLP and serves on the firm’s executive committee. He advises U.S. and global organizations on U.S. immigration and nationality law, regulation, policy, and compliance, including visa and work permit matters; immigration consequences of mergers and acquisitions and other corporate reorganizations; I-9/E-Verify, H-1B/LCA and PERM compliance, including audit representation; and overall global immigration program management. Andrew serves on the board of Brand USA where he was appointed by the U.S. secretary of commerce to be the organization’s immigration law and policy advisor. He also serves on the editorial advisory board of Law360. Andrew’s achievements in the immigration field have been recognized by The Best Lawyers in America®, The International Who’s Who of Business Lawyers, the Legal Times, Chambers USA, Super Lawyers, and the Legal 500.


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