April 4, 2014
With a blink of an eye, the ability to apply for an H-1B visa quickly vanished when the visa cap was reached on April 7, 2014, only five days after the filing period began. The Department of Homeland Security (DHS) will now be conducting a random lottery in order to select which H-1B petitions will be accepted for processing. For those that will either not be selected or who will need a visa some time between now and the next H-1B season next year, alternatives to the H-1B visa must now be explored. 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 U.S. to receive a visa in order to conduct trade between the foreign treaty country and the U.S. (E-1 treaty trader) or invest in a U.S. business (E-2 treaty investor). While the E visa provides an individual with the ability to work for the sponsoring company only, dependent spouses may obtain a general work permit. The E visa may be granted for up to 2 years and may be renewed indefinitely as long as the business remains operational.
F and M Visas. The F visa is available to those wishing to attend an academic or language school, while an M visa is for someone wishing to attend a vocational school. 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 U.S. for the duration of the studies. Most nonimmigrant students may ultimately obtain a work permit known as Optional Practical Training as part of their educational experience.
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 trainee’s 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 18 months.
J Visa. The J visa is available to individuals seeking to participate in an Exchange Program. Under the J category, an individual can obtain an Exchange Visitor visa that allows an individual to participate in a U.S. company’s business as a specialist or as a trainee in a structured training program. The individual is granted authorization to work as a trainee for the U.S. company for the specified duration of the specialty exchange or training program.
L Visa. The L visa allows for a multinational company to transfer its foreign workers to its U.S. 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 U.S. company. In addition to well-established U.S. companies, the L visa is available to foreign companies seeking to open a new office in the U.S. The spouse of an L visa holder may receive a work permit allowing them to work for any company in the U.S. An executive or manager may obtain an L visa for up to 7 years, while a specialized knowledge worker is entitled to an L visa for up to 5 years.
O and P Visa. The O and P visas are available to high caliber entertainers, athletes and artists seeking to work in the U.S. in their field of specialty. The O visa is also available to individuals who have demonstrated extraordinary ability in either 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 2 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 5 years.
The H-1B blackout that will be experienced during the next year will certainly make life much more difficult; however, there are possible options that may still allow for a favorable resolution. 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.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists.