How Businesses Can Plan for Foreign Hires in Light of H-1B Cap

by Ronald Shapiro
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work visaGiven that the H-1B visa cap was, once again, met quickly, many U.S. employers are scrambling to figure out how to hire and retain the foreign national employees that they need. As we recently reported, the U.S. Citizenship and Immigration Services (USCIS) announced on April 7 that it had received approximately 172,500 H-1B petitions in the first five days of the 2015 H-1B application period. Because the quota limit is only 65,000 general category and 20,000 advanced degree exemption category, a majority of petitions were rejected and returned to the petitioner along with the applicable filing fees.

Although the H-1B visa program is often preferable for many occupations, other work visa options do exist. For instance, a foreign national may be able to work in the U.S. under one of the following employment immigration options:

  • L-1 visa for intra-company transfers. Generally, an applicant must have worked abroad as an executive, manager or specialized employee for at least one continuous year within the previous three year period in order to qualify for the L-1 intra-company transfer visa.
  • TN visas for residents of Canada and Mexico. Under the North American Free Trade Agreement (NAFTA), TN work visa status is available for Canadian and Mexican citizens who will enter the U.S. to be engaged in activities at a professional level, which is generally defined as a job that requires at least a baccalaureate degree or appropriate credentials. Unlike other visas, there are no caps on the number of TN visas that can be issued each year.
  • E visas for business investors. An E-1 or E-1 visa is available for traders and investors who are citizens of countries with which the U.S. has a treaty of trade and commerce. The EB-5 investor visa is available for foreign nationals who invest at least $1 million in a new commercial enterprise, or $500,000 in a regional center. In order to qualify, the commercial enterprise that receives the investment funds must have been established after November 29, 1990 and must create or preserve at least 10 full-time jobs for U.S. workers within two years of the investor’s admission into the United States.
  • Visa for workers with extraordinary abilityThe O visa enables people with extraordinary ability in the sciences, arts, education, business, athletics, or the motion picture and television industry to enter the U.S. for temporary periods of time.

Importance of Employer-Employee Cooperation

Regardless of which visa option is chosen, however, the success of a visa petition depends, in large part on the cooperation between the employer and potential employee. In many cases, the visa petition is filed by the U.S. employer on behalf of the foreign national, and it is incredibly important that the foreign national provides accurate and complete information regarding his or her education and training so that the visa petition can be submitted timely and in compliance with applicable regulations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ronald Shapiro | Attorney Advertising

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