Not selected in the H-1B lottery? Other work visas for professionals to consider

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Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options.  A few possibilities that are not subject to annual quotas include:

  • Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
  • TN visas - available to nationals of Canada and Mexico;
  • E-3 visas - available to nationals of Australia;
  • H-1B1 visas - available for nationals of Chile and Singapore (subject to a quota but that quota is rarely met);
  • E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
  • F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
  • J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
  • L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
  • O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics.

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

DHS publishes new rule affecting H-1B1 and E-3 Nonimmigrants and EB-1 Immigrants

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On January 15, 2016, the U.S. Department of Homeland Security (“DHS”) published a new rule that clarified and enhanced opportunities for highly skilled workers from Chile and Singapore who are employed in the U.S. pursuant to the H-1B1 program and for similar workers from Australia in the E-3 category.  Congress created the E-3 and H-1B1 categories after the effective date of many of the existing regulations concerning nonimmigrant work authorization.  As a result, E-3 and H-1B1 nonimmigrants were excluded from some benefits that similarly situated nonimmigrants enjoyed, and for many years there was ambiguity concerning other aspects of their employment authorization in the U.S.  Under this new rule, which goes into effect on February 16, 2016, DHS expressly provides:

  • H-1B1 and principal E-3 beneficiaries will be permitted to continue their employment with their current employers for 240 days upon timely filing an extension of stay request. Previously, H-1B1 and E-3 were not among the list of enumerated nonimmigrant categories that permitted the automatic 240 extension upon timely filing; 
  • H-1B1 and principal E-3 beneficiaries will be included in the classes of foreign nationals who are authorized for employment in the U.S. incident to status with a specific employer.  This clarifies that H-1B1 and principal E-3 workers are not among the classes of nonimmigrants that must separately apply for employment authorization to begin work with their petitioning employer; and,
  • H-1B1 and principal E-3 beneficiaries will be permitted to file for extensions of stay and change of status requests while in the U.S.   Although it has been the case that the Form I-129 instructions permitted H-1B1 and principal E-3 workers to use the form and file for extensions and change of status requests for many years, the existing regulations were not drafted in a way to specifically permit these filings.  

In addition to the changes to the H-1B1 and E-3 categories, DHS’s new rule has also revised the EB-1 regulations for outstanding professors and researchers.  DHS acknowledged the list of evidence that applicants in the EB-1 category may submit to prove their outstanding qualifications was dated and needed to be amended to expressly permit applicants to submit “comparable evidence” to establish their eligibility.  The regulations specifically cite evidence of “important patents or prestigious peer-reviewed funding grants” as two types of comparable evidence applicants may now submit to demonstrate they are recognized internationally as outstanding in their academic areas.

To review a full copy of the new regulations, visit the Federal Register online at https://federalregister.gov/a/2016-00478.  Please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com with any questions you may have about the changes coming next month to the H-1B1, E-3, and EB-1 categories.