In light of the fact that many employers have been unsuccessful in having their H-1B petitions adjudicated for this Fiscal Year 2009, C-G provides a brief summary of certain visas that in the past some employers have pursued as alternatives to H-1B status:
B-1 in Lieu of H-1B: The State Department’s Foreign Affairs Manual indicates that under certain circumstances a B-1 (Business Visitor Visa) can be granted in lieu of an H-1B to foreign nationals who are customarily employed abroad but are sent to the U.S. for a period to provide specialized services. One principal requirement to qualify for this visa category is that the foreign national is being compensated by the foreign entity. Commentary on this unique visa category cautions that the entity must actually be operational and not set up merely to serve as a vehicle for getting around the H-1B CAP. The individual must also be customarily employed abroad. One of the problems with obtaining this type of B-1 visa is that many consulates abroad are not very familiar with it, and those that are (i.e. London and Tokyo) have a tendency to severely restrict their issuance. In addition to the challenge of obtaining the visa is the related risk of being rejected at the boarder by U.S. Customs and Border Protection. For employers, obtaining a B-1 in lieu of H-1B does not involve the filing of a petition with United States Citizenship and Immigration Services, but an application by the foreign national directly to the pertinent consulate abroad. For employers with bona-fide subsidiaries abroad the B-1 in lieu of H-1B visa is an option that should be considered.
O-Visa: Another alternative visa category for foreign nationals who have obtained a level of extraordinary ability in math, science, business, art, education, athletics and extraordinary achievement in the motion picture industry is the O visa category. There is no quota applicable to O visas and no need for a Labor Condition Application (like in the case of H-1Bs). O visa holders may also be able to work in the U.S. even in positions that don’t require application of the foreign national’s extraordinary ability. The obvious problem with the visa category is that for a foreign national to qualify for this visa, he/she must be at the top of his/her field and have received sustained national or international acclaim.
TN Visas: For foreign nationals who are citizens of Canada or Mexico, they may qualify for Treaty National status under the North American Free Trade Act. TN status is obtained via an application at the border and does not require the filing of forms with the U.S. Consulate in Canada or Mexico or a consular interview. A TN visa must be renewed annually, but there is no restriction on the number of times it may be renewed. The problem with the visa type is that it is restricted to foreign nationals of Canada and Mexico and covers only certain specialty occupations itemized in “Schedule D” of the NAFTA. Extending the visa also requires re-examination of the visa status each year via a re-crossing of the border.
J-1 Visas: Sometimes when an F-1 student is closed out of the H-1B quota, what is pursued is a J-1 visa, which affords the student an opportunity to be trained at a U.S. corporation under the auspices of a third party administrator. The major problem with this visa category is that it is restricted to 18 months and, under certain conditions, can impose on the foreign national J-1 visa holder a two year residency requirement, i.e. requiring the foreign national to return to his/her nation of original for 2 years before being able to re-enter the U.S.
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