Nonimmigrant Alternatives to the H-1B Visa
What are some alternatives that employers and foreign nationals can consider if they have not been selected in this year’s H-1B cap lottery?
E-3, Australian Specialty Occupation Worker
Pursuant to the 2005 U.S.-Australia Free Trade Agreement, the E-3 visa classification allows Australian citizens to enter and work in the U.S. in a specialty occupation for two (2) years. To qualify for an E-3 visa, the applicant must:
Be an Australian citizen;
Have a legitimate offer of employment in the U.S. in a specialty occupation; and
Possess the required academic background or other qualifying credentials for the specialty occupation.
The Immigration and Nationality Act (“INA”) defines a “specialty occupation” as a job that requires the “theoretical and practical application of a body of highly specialized knowledge to perform the occupation”; and the “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” INA §214(i)(1).
Generally, a specialty occupation is one that cannot be performed without a bachelor's or higher degree (or its equivalent) in a specific field of study.
Examples of specialty occupations include but are limited to: architects; engineers; professors; teachers; lawyers/attorneys; database administrators and other information technology-related occupations; accountants; economists; doctors and other medical and health related occupations; writers; librarians; marketing and advertising positions; and social workers, to name few.
An added benefit of the E-3 visa classification is that the principal applicant’s spouse is permitted to work “incident to status”, meaning that the spouse who enters in E-3D status may work without applying for work authorization in the United States.
L-1A & L-1B Intracompany Transferees
The L-1 visa classifications provide U.S. employers with the opportunity to transfer key personnel to the U.S. from their foreign parent, subsidiary, branch or affiliate companies. Generally, the L-1A visa is valid for a maximum period of seven (7) years, while the L-1B visa is valid for a maximum period of five (5) years.
To qualify for an L-1 visa, the applicant must:
Have worked outside the U.S. on a full-time basis for one continuous year out of the last three years for a parent, subsidiary, or affiliate of the U.S. employer, where the foreign employer and U.S. employer are related through at least 50% common ownership;
Have worked in either an executive, managerial or specialized knowledge capacity for the foreign employer; and
Be coming to the U.S. to work in an executive, managerial or specialized knowledge capacity for the U.S. employer.
The L-1A visa classification is reserved for qualifying foreign nationals who will be transferred to the U.S. to work in either an executive or a managerial capacity. According to USCIS:
An Executive directs the management of an organization, division, or major function, including establishing goals and policies and exercising discretionary decision-making. An Executive is supervised by higher level executives, board of directors or stockholders.
A Manager manages the operational affairs of the organization as a whole, or a major function of an operating division.
Within the Manager classification, there are personnel managers, who are responsible for supervising and directing the work of other managerial, supervisory and professional personnel within the organization, and functional managers, who are responsible for managing and directing a core or essential function, component, or division of the organization.
The L-1B visa classification is reserved for qualifying foreign nationals who will be transferred to the U.S. to work in a specialized knowledge capacity. According to USCIS:
A specialized knowledge individual is one who possesses special knowledge or advanced knowledge.
Special knowledge is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry;
Advanced knowledge is knowledge of, or expertise in, the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.
Specialized knowledge need not be proprietary, unique, or narrowly held throughout the company, but must be advanced or complex, primarily gained through prior experience with the petitioning employer, and not easily transferable or taught to another individual.
An added benefit of the L-1 visa classification is that the principal applicant’s spouse is permitted to work “incident to status”, meaning that the spouse who enters in L-2S status may work without applying for work authorization in the United States.
TN USMCA Professionals
The United States-Mexico-Canada Agreement (USMCA), enacted on July 1, 2020 to replace the 1994 North American Free Trade Agreement (NAFTA), facilitates travel to and employment in the U.S. for certain Canadian and Mexican citizens.
USMCA created the TN visa classification for eligible Canadian and Mexican professional workers to be employed in the U.S. in certain professions, up to three (3) years, including but not limited to: accountants, architects, computer systems analysts, economists, engineers, graphic designers, hotel managers, industrial designers, interior designers, landscape architects, lawyers, librarians, mathematicians, dentists, pharmacists, and a full-range of scientific occupations. For a full list of the qualifying occupations, please visit: https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/16_Temporary_Entry.pdf.
To qualify for a TN visa, the applicant must:
Be an Canadian or Mexican citizen;
Have a legitimate offer of employment in the one of the qualifying occupations listed in the USMCA Appendix 2 list of professions; and
Possess the required academic background or other qualifying credentials for the specialty occupation. Each USMCA profession lists various educational and/or employment experience requirements for the position, which may include: a Baccalaureate or licenciatura degree; a State, Provincial or Federal license; three years' of relevant employment experience; a post-secondary diploma or certificate; or a licenciatura degree only.
Domestic Visa Revalidation Is Returning to the U.S.!
Before you get too excited, I want to point out two things: (1) the visa revalidation option will only apply, initially, to those seeking to renew H and L visas; and (2) the revalidation program will be launched later this year, but a definitive date has not been announced.
On February 9, 2023, Bloomberg Law published an article based on its interview with Julie Stufft, Deputy Assistant Secretary for Visa Services, Bureau of Consular Affairs, U.S. Department of State. Deputy Assistant Secretary Stufft confirmed that the Department of State would be launching the pilot domestic visa renewal program later this year, initially for foreign nationals seeking to extend their H and L visas, but could expand the program to include other visa classifications in the future.
This is good news of course! Immigration practitioners, U.S. employers and foreign nationals have been advocating for a domestic visa renewal process since the COVID-19 pandemic led to the shutdown of numerous U.S. embassies and consulates abroad. This in turn resulted in a significant backlog of pending visa applications, the unavailability of visa appointments, foreign national employees being stuck abroad for many months, and an interruption in work for U.S. employers.
However, the Department of State noted that one of the challenges in implementing the domestic visa renewal program is the difficulty in creating a new consular division in Washington, D.C.
Again, this is good news, but I can't help but wonder why a program that had already been in place for many years has taken so long to resurrect.
Domestic visa revalidation IS NOT new—the Department of State already operated a very popular and very successful visa revalidation program through its Consular Division in Washington, D.C. until 2004. The old visa revalidation program enabled foreign nationals in the United States in E, H, L and O nonimmigrant visa status, among others, to renew their visas through the Consular Division in Washington, D.C. This visa revalidation program ended in 2004 because the Department of State was unable to meet the biometrics data collection requirements created by new national security laws enacted after the September 11, 2001 terror attacks.
Although it may take several more months to be implemented, the new visa renewal program will be an important and welcomed benefit for many foreign nationals, their families and U.S. employers and we are happy to see it return.
I will continue to monitor the Department of State’s visa renewal program and will provide updates as soon as information becomes available.