Hanishi Ali

Despite the economic downturn, it is likely that within a few days of April 1 when the U.S. Citizenship and Immigration Services (USCIS) begins accepting applications for H-1B work visas, the number of applications will far exceed the 65,000 available visas.

Last year, twice as many applications were received as there were H-1B visas available, so even if there is a substantial reduction in applications this year, the visa cap will be used up fast.  Furthermore, the 20,000 H-1B visas set aside for advanced degree holders of U.S. institutions of higher education also will be exhausted quickly.

In light of the H-1B shortage, this article explores an array of alternatives and possible visa options in the United States (and in the United Kingdom, which can be useful for U.S. companies with a presence there), particularly the U.S. L-1 visa, which certainly must be considered by employers seeking to determine the most strategic and suitable method for hiring foreign nationals as part of their workforce.

Alternatives to H-1B visas include:

• L-1 visas for intra-company transferees: The L-1 visa, an intra-company transferee, is often a viable option for employers and provides an alternative temporary visa option to employees of companies that share ownership. This visa is a useful tool for multinationals and small companies alike and allows them to hire foreign nationals on a temporary basis with the ability to provide permanent residency. There are two different categories: the L-1A is intended for sponsoring a manager or executive-level employee; the L-1B is intended for sponsoring a person who has specialized knowledge relevant to the position. There are three main requirements of an L-1 visa. First, the employee must have been employed abroad full-time for at least one of the three years prior to filing the L-1 petition. Second, the employee must be coming to the United States to work in an executive, managerial or specialized-knowledge capacity. Finally, the company must be doing business in the United States and in at least one other country.
  
  The major advantages of the L-1 visa is that there is no cap as there is with the H-1B visa, nor are L-1 employers subject to a prevailing-wage requirement, as with H-1B employers.  Yet another favorable factor is that dependent spouses of L-1 visa holders can obtain employment authorization documents and work in the United States, while spouses of H-1 visa holders are prohibited from doing so.
  
• O Visas for individuals of extraordinary ability: O visas are available to individuals who can exhibit extraordinary ability in the sciences, education, business, athletics, the arts or the motion picture and television industry. The initial visa is valid for up to three years and can be renewed indefinitely for up to one year each time it is renewed.
  
• TN visas for Canadian and Mexican professionals: The TN visa, short for "Trade NAFTA," is a non-immigrant visa category available only to Canadian and Mexican professional workers in certain occupations as part of the North American Free Trade Agreement. The TN has a one-year term, but can be renewed indefinitely and there is no cap on TN visas allotted.
  
• E-1 or E-2 visas for treaty traders and investors: These Visas are available to principals and employees of foreign-owned companies that are either investing in the United States or doing substantial trade with the United States. The employees must hold citizenship in the same country in which the foreign company is based or owned.
  
• E-3 visas: E-3 visas are available to Australians who intend to work in the United States temporary in professional positions.
  
• J visas for exchange visitors: This visa category is available for exchange visitors for training, gaining work experience, studying or research. The requirements include that the program must be sponsored by a J-1 organization, but the foreign national may be trained by a private company.

In addition, the United Kingdom has recently revamped its immigration system, and while there are a variety of work visas available, each with different validity periods, requirements and restrictions, two of the more popular visas are explored below.

• United Kingdom intra-company transfer: Employees of companies with offices in the United Kingdom can apply to be transferred by their overseas employer to a skilled job in a UK-based office of the organization. Decisions by UK immigration authorities are usually made within six weeks and, unlike a new H-1B visa, an employee can start work immediately on approval of the visa.
  
• United Kingdom highly skilled worker: The highly skilled worker category is designed to allow highly skilled people to come to the United Kingdom to look for work or self-employment opportunities without requiring a job in hand or a sponsor. An applicant is awarded points based on his/her qualifications, previous earnings, experience, age, English language skills and available funds.

Hanishi Ali is an immigration attorney at Mithras Law Group (www.mithraslaw.com), a Westborough, Mass.-based international business and immigration law firm. She can be reached by phone at (617) 500-3233.