H-1B VISA ALTERNATIVE GUIDE · PDF fileTN VSA What makes the ... ALTERNATIVES TO THE H-1B VISA:Hfi1B ALTERNATIVES GUIDE YOUR COMPREHENSIVE GUIDE 7 Quick Tips: The TN visa is not dual

H-1B VISA ALTERNATIVE

GUIDE

Year after year, employers and employees alike cross

their fingers and hold out hope when the H-1B cap

opens in April. The H-1B visa is the most sought-after visa

category for recent graduates and skilled workers who

want to join the U.S. workforce.

INTRODUCTION

H-1B ALTERNATIVES GUIDE 3

TN VISA

What makes the H-1B visa so popular? It’s the most accessible work visa option for skilled foreign nationals

to obtain if they hold a bachelor’s degree (or have equivalent work

experience). Hundreds of thousands of applications flood the U.S.

Citizenship and Immigration Services (USCIS) office every year, and as

a result, force all petitions into a lottery for random selection.

Each fiscal year, 65,000 H-1B visas are granted

to qualified applicants, along with an additional

20,000 for those with advanced degrees.

In 2015, USCIS received enough petitions to reach the cap by April

7. Nearly 233,000 petitions were submitted, leaving 64 percent of

H-1B seekers without employment authorization. The lottery system

determines which applications are processed, requiring those who

aren’t chosen to make alternative employment arrangements.

>60% of applicants aren’t selected in the lottery

>60%


TN VISA

The need for alternatives can arise from a number of situations. Perhaps your foreign national’s petition was not selected in the H-1B lottery,

or changing business conditions have resulted in unanticipated hiring needs.

Whatever the reason may be, it’s important to know that alternatives

to the H-1B visa are available.

This guide outlines the most popular options and key details you need to know..

01 TN Visa

03 E-3 Visa

02 E-2 Visa

04 L-1 Visa

05 H-2 Visa

06 F-1 Visas

TN VISA

Are you sponsoring a Canadian

or Mexican national?

If so, he or she may be eligible for the

TN visa, which shares a number of

similarities to the H-1B, and is one of the

most popular and attainable alternatives.

These visas have no quota limit on the

total number of visas issued on a yearly

basis, and can be applied for at any time,

making it a smart alternative for those

who qualify.

01


TN VISA

Who’s Eligible?

OR

in an occupation included in

NAFTA’s designated profession list.

Citizens of

Mexico

Citizens of

Canada

The Specifics:

The TN visa is valid for three years and can

be renewed as many times as needed.3 years

Accountant, engineer, scientist, health care professional, architect, lawyer,

teacher, economist, social worker, mathematician, psychologist, computer

systems analyst, industrial designer and more.

A full list of NAFTA-designated professions can be found here:

http://1.usa.gov/1QnF9QZ

Designated professions include:

http://1.usa.gov/1QnF9QZ

ALTERNATIVES TO THE H-1B VISA: YOUR COMPREHENSIVE GUIDEH-1B ALTERNATIVES GUIDE 7

Quick Tips:

The TN visa is not dual intent. In other words, if an employee with a

TN visa pursues permanent residency, the individual will experience

difficulty renewing the visa and when traveling.

Canadians can bypass USCIS altogether and apply directly at a U.S.

Customs and Border Protection prescreening or border crossing.

Mexicans can bypass USCIS altogether and apply

directly at a U.S. consulate abroad.

Is your employee a citizen of either Mexico or Canada?

If you answered YES to both of these questions, the TN visa may be a viable H-1B alternative.

Review: Qualifying Questions

Is your employee’s profession included in the NAFTA professions list?

YES NO

YES NO

E-2 VISA

The E-2 visa category allows

managers, supervisors, executives,

essential employees or investors

from select treaty countries, such

as Egypt, Belgium and Colombia,

to temporarily travel and stay in the

United States to conduct business.

02


E-2 VISA

Who’s Eligible?Foreign nationals sharing the same nationality as the company/

person that owns the sponsoring U.S. entity.

E-2 treaty countries include: Australia, Belgium, Colombia, Costa Rica, Czech

Republic, Egypt, France, Germany, Italy, Japan, South Korea, Mexico, Morocco,

Poland, Spain, Ukraine and the United Kingdom.

See the full list of treaty countries here: Envoy E-2 Treaty Countries

The nationality of both the employee and sponsoring U.S. entity must be included in the list of treaty countries:

There are three types of individuals eligible for an E-2 visa:

1 A foreign national investor with a sizable stake in a U.S. entity

(at least 50 percent ownership must be held at all times).

2 A manager or executive of an investing corporation who maintains a

controlling interest at all times with at least 50 percent ownership.

3 An “essential employee” of an investing corporation with key skills that

allow him or her to perform specific job functionalities.

http://www.envoyglobal.com/resources/PDF/Envoy-E-2-Treaty-Countries.pdf


E-2 VISA

The Specifics:

An E-2 visa application can be completed either inside or

outside of the United States. Regardless of where the visa is

attained, it is renewable indefinitely.

If applied for while abroad at a U.S. consulate:

The length of visa validity varies between two and five years.

To obtain the visa stamp necessary for travel on an E-2 visa, foreign nationals

should visit their home country’s U.S. consulate. Processing times can be as

long as five months — so the employee will be absent during that period.

However, without the visa stamp, he or she will not have travel privileges.

If applied for while in the United States:

The E-2 visa will be valid for five years, but the employee must remain

within the Unites States and cannot travel abroad during that time.

Quick tips:

The E-2 visa is not dual intent.

To effectively begin the application process for a green card,

the individual should first switch to an H-1B visa.

Spouses of E-2 visa holders are eligible to apply for work

authorization once they are in the United States.


If you answered YES to any of these questions, the E-2 visa may

be a feasible H-1B alternative.


Is the employee coming to the United States to invest

sizable capital into the business?

Is the employee a manager or executive?

Is the foreign national an “essential employee” for the company?

YES NO

YES NO

YES NO

ALTERNATIVES TO THE H-1B VISA: YOUR COMPREHENSIVE GUIDE

E-3 VISA03

The E-3 visa is an alternative only

applicable to Australian citizens

entering the United States to

perform services in a “specialty

occupation,” which is defined by

the same guidelines that apply to

an H-1B or TN visa.

03 The e-3 Visa


E-3 VISA

Who’s Eligible?Citizens of Australia filling a

“specialty occupation” role.

The Specifics: Qualifying Australian citizens must be filling a “specialty

occupation” role, meaning it requires a specific skill set and

background of specialized knowledge.

While there is no set “specialty occupation” list, occupations

often fall into a few categories. Examples include health care,

biotechnology, human resources, education, engineering,

computer sciences, management, medicine, etc.

E-3 visas also require the Australian citizen to

hold a bachelor’s degree in a major related to the

U.S.-based position they are pursuing, or possess

equivalent work experience.

ALTERNATIVES TO THE H-1B VISA: YOUR COMPREHENSIVE GUIDEH-1B ALTERNATIVES GUIDE 14

Quick Tips:

The E-3 is valid for two years with unlimited extensions.

Spouses of E-3 visa holders are eligible to apply for work

authorization once they are in the United States.

If the foreign national changes employers, a new E-3 visa must be

approved before any work can begin.

Since the visa is dual intent, to effectively begin the application process

for a green card, the individual should first switch to an H-1B visa.

YES NO

Is your employee a citizen of Australia?

If you answered YES to these questions, the E-3 visa may be a viable H-1B alternative.


Is the employee filling a position that is considered a “specialty occupation”?

Does your employee hold a bachelor’s degree or equivalent work experience?

YES NO

YES NO

L-1 VISA

The L-1 visa is an H-1B alternative for

foreign nationals who are considered

key employees in overseas operations.

04

04 The L-1 Visa


L-1 VISA

Who’s Eligible? Foreign nationals who’ve worked abroad at a foreign affiliate of the sponsoring U.S.

entity in an executive, managerial or “specialized knowledge” capacity.

Candidates must have worked abroad for at least 12 continuous months

out of the last three years at the time of application.

The Specifics: The foreign affiliate of the sponsoring U.S. entity must be related as a parent,

subsidiary, branch, affiliate or joint venture.

Employees who have worked in an executive or managerial role at the foreign

affiliate company are eligible for the L-1A subcategory visa.

Employees who possess “specialized knowledge” are eligible for

the L-1B subcategory visa.

“Specialized knowledge” is defined as the specific knowledge relating to a

company’s product, service, research, equipment, techniques or other interests.

Those with “specialized knowledge” also understand the company’s business

in international markets or have an advanced level of understanding about

processes and procedures specific to the company or industry.


Quick Tips:

L-1A visa holders may receive initial approval for three years with two 2-year

extensions available (total eligibility of seven years).

L-1B visa holders may receive initial approval for three years with one 2-year

extension available (total eligibility of five years).

All L-1 visas are dual intent, allowing the visa holder to work

in the United States while also pursuing permanent residency

(via a green card) at the same time.

Spouses of L-1 visa holders are eligible to apply for work authorization

once they are in the United States.

YES NO

Has the employee worked at a foreign affiliate of the sponsoring U.S. entity

for at least 12 continuous months in the last three years?

If you answered YES to any of these questions, the L-1 visa may be a viable H-1B alternative.


Is the employee in an executive, managerial or

“specialized knowledge” role?

Is the foreign affiliate of the sponsoring U.S. entity related as a parent,

subsidiary, branch, affiliate or joint venture?

YES NO

YES NO

H-1B1 VISA05

Do you have employees from

Singapore or Chile?

If so, the H-1B1 visa could be a

viable alternative visa option.

05 The H-1B1 Visa


H-1B1 VISA

Who’s Eligible?

OR

filling a “specialty occupation” role.

Citizens

of Chile

Citizens of

Singapore

The Specifics: Qualifying candidates must be filling a “specialty occupation” role, meaning

it requires a specific skill set and background of specialized knowledge.

Candidates must also hold a bachelor’s degree (or equivalent) in

a major related to the U.S.-based position they are pursuing, or

possess equivalent work experience.

While there is no set “specialty occupation” list, occupations

often fall into a few categories. Examples include

engineering, mathematics, physical sciences, computer

sciences, medicine, health care, education, biotechnology,

management, human resources, etc.


Quick Tips:

The H-1B1 visa is typically approved for 12 months at a time with

extensions available through USCIS or at a U.S. consulate abroad.

Like an H-1B visa, employers must pay the prevailing wage of the

position and obtain a certified Labor Condition Application with the

U.S. Department of Labor.

H-1B1 holders cannot take advantage of portability rules, which

makes changing employers more difficult.

H-1B1 visas are not dual intent. To begin the application process for a

green card, the employee should first switch to an H-1B visa.

YES NO

Is your employee a citizen of Chile or Singapore?

If you answered YES to these questions, the H-1B1 visa may

be a viable H-1B alternative.


Is the employee filling a position that is

considered a “specialty occupation”?

Does your employee hold a bachelor’s degree or

equivalent work experience?

YES NO

YES NO

F-1 OPT STEM EXTENSION06

What about employees who currently

hold F-1 status?

The F-1 Optional Practical Training (OPT)

science, technology, engineering and

mathematics (STEM) extension is an

excellent solution to bridge the time

gap between the expiration of OPT and

the next H-1B cap season. In applying

for both visa types simultaneously, the

candidate has a built-in “plan B.”


TN VISA

Who’s Eligible? Foreign nationals with F-1 OPT student status studying at a U.S. college or

university.

Students who have exhausted their initial 12 months of OPT eligibility.

Students who hold a STEM-eligible degree.

The Specifics: The STEM-based OPT extension provides additional work authorization

beyond the initial F-1 OPT authorization of 12 months.

Once all OPT work eligibility is exhausted, no additional

extensions are given.

Examples of STEM-eligible degrees include those in

engineering, mathematics, military applied sciences, biology,

pharmacology, astronomy and astrophysics, chemistry,

economics, behavioral science and environmental studies.

Quick Tips:

Once all extensions are used, the foreign national can pursue a green

card, but travel restrictions apply throughout the process.

Employers must be enrolled in E-Verify for the foreign national to

receive approval for an F-1 OPT STEM extension.

ALTERNATIVES TO THE H-1B VISA: YOUR COMPREHENSIVE GUIDE


YES NO

YES NO

Does the employee currently hold F-1 OPT status?

Does the employee currently hold F-1 OPT status?

If you answered YES to all of these questions, the F-1 OPT STEM

extension visa may be a viable H-1B alternative.


Has the employee exhausted the initial 12 months of

OPT work eligibility?

Does the employee hold a STEM-based degree?

YES NO

YES NO

Content in this publication is not intended as legal advice, nor should it be relied upon as such. For additional

information on the issues discussed, consult a Envoy-retained attorney or another qualified professional. Website,

technology platform and administrative services provided by Envoy Global, Inc., a Delaware corporation. Legal

services provided by Envoy-retained attorneys. © 2017, Envoy Global, Inc., All Rights Reserved.

WWW.ENVOYGLOBAL.COM(312) 964.6300

Documents

H-1B VISA ALTERNATIVE GUIDE · PDF fileTN VSA What makes the ... ALTERNATIVES TO THE H-1B VISA:Hfi1B ALTERNATIVES GUIDE YOUR COMPREHENSIVE GUIDE 7 Quick Tips: The TN visa is not dual