Alternative to the H-1 Visa

February 3, 2011

      With the announcement of the Department of Homeland Security (DHS) that the H-1B visa cap had been reached on January 26, 2011, alternatives to the H-1 visa must now be explored.  The immigration laws provide for various alternatives, each with its pros and cons.  The following summarizes the various alternative visas.

E Visa.  The E visa allows nationals of countries who are a party to certain treaties with the US to receive a visa in order to conduct trade between the foreign treaty country and the US (E-1 treaty trader) or invest in a US business (E-2 treaty investor).  The Philippines entered into such a treaty with the US on September 5, 1955, thereby entitling Philippine nationals to receive E visas.  While the E visa provides an individual with the ability to work for the sponsoring company only, a dependent spouse may obtain a general work permit.  The E visa may be granted for up to two years and may be renewed indefinitely as long as the business remains operational. 

F and M Visa.  The F visa is available to those wishing to attend an academic or language school, while an M visa is a prospective vocational school attendee.  To be eligible, an individual must apply for and be accepted into an educational institution that has been authorized by the DHS to accept foreign students.  An individual may remain in the US for the duration of the studies. 

H-3 Visa.  The H-3 visa is provided to those who wish to participate in a training program in such categories as commerce, agriculture, government, finance, etc.  To qualify, the sponsoring company must prove that it has an established training program, that similar training is not available in the foreign trainees home country, and that the individual plans to return to the home country upon completion of training.  The visa may be issued for a period not to exceed eighteen months.

J Visa.  The J visa is available to individuals seeking to participate in an Exchange Visitor Program.  Under the J category, an individual can obtain a Trainee visa that allows an individual to participate in a US company’s structured training program as regulated by a Department of State authorized agency.  The individual is granted authorization to work as a trainee for the US company for the specified duration of the training program.  The J visa can also be obtained for purposes of temporarily working as a nanny, as part of an exchange program.

L Visa.  The L visa allows for a multinational company to transfer its foreign workers to its US company.  The transferee must have worked in an executive, managerial, or specialized knowledge position in the foreign company, and will continue to work in such capacity in the US company.  In addition to well-established US companies, the L visa is available to foreign companies seeking to open a new office in the US.  The spouse of an L visa holder may receive a work permit allowing them to work for any company.  An executive or manager may obtain an L visa for up to seven years, while a specialized knowledge worker is entitled to five years. 

O and P Visa.  The O and P visas are available to high caliber entertainers, athletes and artists seeking to work in the US in their field of specialty.  The O visa is also available to individuals who have demonstrated extraordinary ability in the sciences, education or business.

R Visa.  The R visa is provided to those seeking employment as a Religious Worker.  Individuals are eligible to receive an R visa if they have been a member of the religious denomination for at least two years and will be working as a minister, or in a religious vocation or occupation as a professional or nonprofessional.  The R visa may be issued for up to five years.

TN Visa.  The TN visa is analogous to the H-1 visa, but is available only to citizens of Canada and Mexico, whether by birth or naturalization.  The TN visa entitles an individual to work as a professional for a US company.  The TN visa may be issued at three year increments and may be renewed indefinitely.

     The H-1 blackout for the next several months will certainly pose problems; however, there are possible options that may still allow for favorable resolutions.  It is vital that individuals garner the assistance of an experienced immigration attorney to help them navigate through the complex immigration laws during these difficult times.