The H-1B lottery season has come and gone, leaving employers scrambling to fill open positions; and thousands of foreign applicants without a means to work in the United States. Before throwing in the towel, please read on, as there may be other great visa options that will allow you to hire that worker after all. Plus, understand general guidance for employing foreign workers. Don't test the law...abide by it!
How can I employ a foreign worker?
H-4 Status: Spouses of H-1B visa holders are generally in the US under the H4 visa. Effective May 26, 2015, H-4 visa holders may request work authorization if the principal H-1B worker has an approved I-140 petition or has been granted an H-1B extension past the six year time limit normally given. In either instance, the H-4 derivative can file for a work permit directly with Department of Homeland Security (DHS) and will be able to start work approximately 90 days later. The expiration date will be identical to that listed on the H-1B visa holder's latest approval notice.
F-1 OPT STEM Extension: Most foreign graduates are given one year of Optional Practical Training (OPT) in order to gain employment experience in their specialized field. Those graduating with a bachelor degree or higher in science, technology, engineering or math (STEM) are eligible for a 17-month extension if the employer uses the E-Verify system that allows employers to determine if new hires are legally able to work in the U.S., and if the applicant has graduated and is currently in an approved OPT period. He or she may apply for the STEM extension any time prior to the expiration date on the current OPT card.
O-1: When an applicant really stands out in the field, an O-1 visa may be the perfect fit. The applicant demonstrates extraordinary ability in the field of expertise by showing sustained national or international acclaim in the field. Expertise in the fields of business, science, education or athletics requires proof that the applicant is in the small percentage of experts at the very top of the field of endeavor nationally or internationally. Expertise in the arts and entertainment industries means distinction and a showing that the applicant's work is substantially above that normally encountered. The applicant submits proof such as original contributions to the field, trade or mainstream media publications about the applicant's work, nomination/selection for elite memberships or awards requiring excellence in the field, expert letters describing the person's unique national or global impact, employment in a critical capacity for well-respected companies, peer review or juried panel work in the field, a high level of remuneration, etc. The employer sponsors this petition and may ask for three years of employment; with two-year extensions available.
J-1: The J-1 visa is a cultural exchange program that allows qualified applicants to get "hands on" training in the U.S. for 12 months (intern) or 18 months (trainee). Prospective Interns must be enrolled in a post-secondary educational program or have graduated from the program within 12 months of the anticipated start date. Prospective Trainees must have both a post-secondary degree and one year experience, OR at least five years of relevant foreign professional employment. Offered training must be in one of several occupations including business, finance, sciences, engineering, information media and architecture. The application is processed by private agencies on behalf of the U.S. Department of State and includes a site visit to the anticipated worksite and an in person interview for the applicant. A few caveats: F-1 students who have used the OPT employment year are not eligible. Many J-1 agencies are also reluctant to process cases for persons who are currently residing in the U.S. Applicants from some countries will only be granted J-1 status on the condition that they then return to their home country for 2 years after completion of the training assignment (which can be waived in certain circumstances).
Country Specific Visas: H-1B1, E-3, TN: Yearly quotas for these visas are rarely met so if you have a national from the following countries, you are in luck! Chileans and Singaporeans are eligible for the H-1B1 visa. Criteria are identical to the H-1B, except applicants may only ask for one year of status at a time. Australians may request the E-3 visa, which is virtually identical to the H-1B and status is provided in two-year increments. Canadian and Mexican professionals may apply for the TN visa, as long as their positions fit into a "TN Occupation" such as graphic designer, engineers, architect, college teacher, management consultant and mathematician. Common job titles include U/I Designer, Software Engineer/Developer, and Management Consultant in a specific field. Status is provided in three-year increments.
L-1A/B: Does your company have an operational foreign affiliate? If so, the L-1A may be used to bring in executives and managers and the L-1B for critically important employees who have specialized knowledge vital to the U.S. entity. Applicants must have worked abroad in a full-time position for at least one year in the past three years. In the L-1B category, the applicant must also have a bachelor degree or higher. The L-1A provides up to seven years of status and the L-1B up to five years. A word of caution: DHS is at a 15 year high in denying L-1B visas so please proceed carefully and ensure your attorney fully vets the case before moving forward.
H-1B: Just because your applicant was not accepted in the H-1B lottery, doesn't preclude the company from hiring workers who are already in H-1B status. From this perspective, there are thousands of H-1B workers who qualify to change employers and to retain their H-1B status with the new company. It is important to determine the amount of H-1B time an applicant has remaining. H-1B status is generally given for six years, and the applicant must then depart the US for one year before applying again. The applicant can "recapture" any time spent out of the US during those six years. An applicant who has a pending or unexpired, approved labor certification application* filed more than 365 days before the end of the six years (plus any recaptured time outside the US) is eligible for one year extensions past the normal limit. *A timely filed, pending I-140 petition filed before the LCA expiration date also provides the yearly extension benefit. Applicants who have an approved, un-revoked I-140 petition are eligible for three-year extensions.
B-1 in lieu of H-1B: To qualify, the applicant must be employed by a foreign company which can be a business enterprise connected to the U.S. company. Identical to the H-1B, the position must be in a specialty occupation; therefore the applicant must have the requisite professional degree equivalent. The visa is for short-term placement of under six months, for hands on work that normally requires an H-1B visa. The applicant must demonstrate that he or she does not have the intention to remain in the U.S. after the period requested and lastly, the foreign company must continue to pay the employee's salary. Caveat: this visa is under review and many consular posts simply refuse to issue a B-1 visa for this purpose.
Q-1: Cultural exchange organizations such as regional or ethnic arts, dance and language organizations where cultural education is a primary, integral component may qualify to sponsor applicants for the 18 month Q visa. A portion of the program must be open to the public and the position must be the "vehicle" used to achieve the program's cultural objectives.
The list above is not exhaustive, but presents the most likely visas for full-time, U.S. employment.
Can We Hire Someone Who Entered On a Visitor Visa?
No. However, if a person enters on Visa Waiver or a B1 visa, and is here on behalf of a foreign employer, he or she may interact with a U.S. company in some capacity. Acceptable activities include negotiating contracts, consulting with business associates, taking orders for goods/products, installing, servicing or repairing equipment that was purchased from the foreign company where the sale contract included such services, or observing company operations. Companies may also review the B-1 in lieu of H-1B option listed above.
Can't the person work unpaid or "stop by" for meetings before the visa is approved? Can I just hire them as an independent contractor?
No. Unpaid employment in this context is a violation of immigration and labor law; and can have serious consequences for employer (civil and criminal penalties) and the employee (visa denial, misrepresentation and fraud determination, re-entry bars). This prohibition includes "volunteer" work and working as an independent contractor. It is understandably tempting in the short term, however the long term implications may be disastrous. Simply put, it's not worth the risk...hang tight and work through the process.
About the Author
Christine Troy has more than fifteen years practicing exclusively in the area of Immigration and Naturalization Law. She has extensive experience obtaining work visas and green cards in the business immigration context, from fledgling start-ups to established, multi-national companies. At the request of the White House Office of Science and Technology, Ms. Troy and a team of Bay Area immigration attorneys developed solutions to facilitate visa issuance for foreign entrepreneurs and investors. She has been interviewed by the Wall Street Journal Digital Network and KQED, and been selected as a Northern California "Super Attorney." Ms. Troy is an active member of the American Immigration Lawyers Association and the California State Bar.