H-1B Visa Alternatives

An Interview with Immigration Attorneys Maggie Murphy and Amy Lighter

Joel Cohen (JC): Hello, and welcome to TalksOnLaw.  I'm Joel Cohen. Today, we're talking about H-1B alternatives, and we're joined remotely by two immigration law experts, Maggie Murphy and Amy Lighter of the law firm BAL. Amy, Maggie, welcome to TalksOnLaw.

Amy Lighter (AL): Hi, Joel. Glad to be here.

Maggie Murphy (MM): Thank you.

JC: Let's talk about what happens if you don't get your H-1B visa. I suppose, first off, why is this important?

MM: Well, unfortunately the H-1B visa category is capped each year there is a limited number, and historically, the acceptance rate is only, it’s under 50 percent in most cases in most years. So there are thousands and thousands of applicants each year who do not get allotted the H-1B visa. So a lot of what we do at a business immigration firm in particular is determine what next, where do we go next, what other visa categories are available.

Based on Nationality

JC: So, today, I will be talking about alternatives. I guess we could call these backup options because, as you said, most people who apply for an H-1B unfortunately don't get it.

AL: That's right. We have to start thinking about what characteristics the applicant might have that might qualify them for some alternative. You know, in a lot of cases, one of the first things we look at is the person's country of origin because there are certain types of visas available that are limited to people who are nationals of a particular country. So one of the most common ones that we turn to is for citizens of either Canada or Mexico. There is a visa called the TN visa, and that was created by the NAFTA treaty and then recently extended under a new very similar treaty.  But that's one that nationals of those two countries very often turn to.

Joel: So the TN visa, is that similar to the H-1B? You have to wait for that same window in the spring to apply?

AL: No, in fact, you can apply for a TN visa any time of year because it doesn't have, the demand is not nearly as high as the supply of visas. So it's something that's available to to nationals of those countries.

JC: So the TN is for Mexico and Canada. Are there other special qualifications for people based on their nation of origin?

MM: Yes, in addition to Canada and Mexico, there are treaty visa options for people from Australia, Chile, and Singapore. So the Australian national benefits from the E-3 visa category. So it's E-3. It's very similar to an H-1B but one in, two advantages really. One is that the applicants can apply directly at the U.S. consulates in Australia. So it's much faster. For Chile and Singapore, the category is called H-1B1. Again, very similar to the H-1B in terms of requirements, so the position must require at least a bachelor's degree or higher, and then also processing for that can be done mostly at the consulate outside the U.S. Again these are, so Canada, Mexico, Chile, Singapore, and Australia are the five nationalities that have their own visa categories under treaties.

Based on Job or Field of Work

JC: And how about a distinction amongst the applicants in terms of profession or career? Are there certain visas that are available to individuals with a very special career?

MM: There are certain visas that are available to those with a very high level of education and performance in their field. There's an O-1 visa category, which is for an alien of extraordinary ability as the actual title of the visa, but it's an O-1, and is for those who have risen to the very top of their field. So sometimes, these applicants will be sponsored in the H-1B lottery. So they will have an employer who will just enter them into the lottery. But if their case doesn't get picked, it's always interesting to look at their CV and to see a lot of them in their studies have really risen to the very top of their field, or they've discovered something and they have a patent application, or they're an artist.

JC: And the O-1, that's also where we see models and actors submitting their visa applications?

AL: That's right. Models actually have a couple of options, so if you're a model applying for H-1B status then you might have several alternatives. But yeah, for O-1, it covers motion pictures, artists of all stripes, as well as things like scientists and researchers, and you know maybe people who are in government. All of those types of things are possibilities for O-1. So if, you know, for highly educated people, people who are very accomplished in their chosen fields, the O-1 can be a great option.

JC: There's also an additional program or some visa opportunities for individuals in the STEM fields. Am I right?

MM: That's right. It's also, it's something that we really look for when we are going through the H-1B registration process. We will also look at the candidate’s application to see if they qualify for STEM OPT, which is work authorization beyond graduation. So a student in the U.S. who graduates from a U.S. university program, they qualify for what's called optional practical training, OPT. And if they graduated in a STEM field, so science, technology, engineering, mathematics, then they will qualify for an additional two years of work authorization after that first year of OPT if they go to work for an E-Verify employer. So there are some, you know, requirements, and it's not as easy as that first year of OPT, but it is something that we look for so that we can flag it for the employers if that candidate is not selected in that year's lottery.

JC: And before we let you go, how about the L-1? What, how does one qualify for an L-1 visa?

AL: Yeah, you know, sometimes we have people who, despite our best efforts, run out of time on their U.S. visas and are going to have to depart the U.S. If they have a company that has entities outside the United States and they can get a position with one of those entities outside the United States for at least a year, they may qualify to return to the United States in an L-1 status. And that's for people who are working either in what we call specialized knowledge positions, so position that requires knowledge unique to that company or in a managerial type of role where they're managing other people or managing a function of importance to that company. If they are doing that offshore for a year, they may be able to re-enter the United States in L-1 status to do a similar role.

JC: Maggie, last question. How about for those who don't get their H-1B, is there any limit on applying the next year, or does it give you any advantage that you have applied in a prior year?

MM: According to USCIS, right now, there is no advantage. If you have applied in prior years and are applying again, you don't get extra credit because you've applied in prior years. But you also are not penalized, so you can apply as many times as it takes. If you qualify and have a willing sponsor, you can submit or have that sponsor, that employer submit a case for you in the lottery every year.

JC: Maggie Murphy and Amy Lighter are immigration law attorneys at the firm BAL. Maggie, Amy, thanks for the time.

 MM: Thank you, Joel.

AL: Thanks for having us.