H1b VISA QUOTA IS GONE; OPTIONS IF YOU’RE TOO LATE

H1b VISA QUOTA IS GONE; OPTIONS IF YOU’RE TOO LATE.

It took only five days for the yearly visa quota for the H1b professional visa to be used up this week. The U.S. Citizenship and Immigration Service (USCIS) announced this week that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2020.

So what are your options if you or your employee have submitted your H-1b application in time?  What if you are not eligible for an H-1b visa?

This article will provide an overview of these non-immigrant visas in the U.S. based upon employment or business purposes.  Some of these options surely will not apply; but perhaps there is one or more that can provide a short-term or long-term option for you or your employee.

F-1 visa: Student visa.  Visa for an unspecified period of time while the student is enrolled full-time in an approved program of study.  This may be a good option if you were a student before applying for the H-1b and you can extend your study or go back to school.  It usually is an expensive solution as you need to study full-time and pay international student tuition.  Generally, you cannot work with this visa.

J-1 visa: Training visa.  Visa for up to 18 months while the person is enrolled in an approved program of training for a specific company.   This can be a good option for persons having completed college recently.  You obtain a work permit, but it is supposed to be “on-the-job” training only.

         B-1 visa: Business visa.  Available to persons doing business in the U.S.  It is usually valid for six months or less, but may be extended in the U.S. by simple application to the CIS.  This can be a possibility to extend your time here in order to search for business partners and contacts, as long as you adhere to the visa terms: no working, visa ends in six months or less. 

B-2 visa: Tourist visa.  It is usually valid for six months or less, but may be extended in the U.S. by application to the CIS.  This can provide a short-term solution, allowing the foreign national to stay a few months longer before returning home for touristic reasons.  Filing the extension application automatically extends one’s legal stay in the U.S. until a decision is reached.

L-1 visa: Intra-company transferee.  This is a good option for foreign nationals employed by a multi-national company doing business here.  A visa for an executive or person with specialized knowledge, sponsored by a company abroad with a related company here.  The first visa is valid for 1 year , but may be extended up to 7 years.  It provides the right to work for the sponsoring company.  Does not require that the applicant have a degree.

E visa: Treaty trader or investor visa.  This is a good option if you happen to have a “substantial” amount of money to invest in the U.S. and want to start a business here.  Requires a treaty with the country of origin of the applicant and substantial investment in the U.S. or trade with the U.S.

R-1 visa: Religious worker.  A visa for persons sponsored by a religious institution, valid for 2 years but may be extended.  A very good alternative for persons offered work by a church, synagogue, school or other religious institution.

O/P visa: Artist or entertainer.  A visa allowing artists, entertainers or athletes to stay in the U.S. for the purpose of specific performances for a specific limited period.  The government requires that they document their “outstanding” qualifications and “international acclaim”.   The standards are quite high.

Every person’s unique case must be evaluated specifically to determine which non-immigrant visa might offer the best chances for extending their legal status here.  These categories are not broad and the options are limited, but in many cases, one may find a solution if their H1b visa dreams were unfulfilled this year.

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, San Rafael, Ukiah, Napa, Walnut Creek, San Jose, Sacramento and Los Angeles.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 10 years, he has been honored as one of Northern California’s top lawyers by “Super Lawyers” www.SuperLawyers.com.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

TN Visas: the NAFTA visa for Canadian and Mexican citizens.

By Christopher Kerosky

There is a special visa for Canadians and Mexicans that gives them an advantage over applicants from other countries in obtaining such working visas.  It is called the NAFTA Professional Visa or “TN” visa and it allows Canadians or Mexican citizens to come with less difficulty than persons from other countries, provided they have the required training and education. 

The TN visa was created by the North America Free Trade Agreement (NAFTA) in 1994, to allow for the exchange of qualified professionals from Canada, Mexico, and the United States. Canadian citizens may apply for the TN visas at the U.S. Embassy and Consulates.

What do you need to prove?

An applicant needs to prove that they have a college education or the equivalent amount of education and experience. 

There must also be a employer/sponsor who is willing to employ them.  Mexican or Canadian applicants must work in a prearranged full-time or part-time job, for a U.S. employer. Self employment is not permitted.

The sponsor must provide a letter of employment or a contract which details the professional work that the applicant is being offered in the United States. The position must be of a “professional” as that is defined by NAFTA and the immigration regulations.  The State Department and the Embassies are very strict on what is considered a “professional” degree and so it is important that the job fit their defined list of “professional jobs”.

Persons whose job offer is not considered “professional” will be denied the visa.

What Jobs Are Considered Professional?

There is a list of jobs that are considered professional.  This list includes but is not limited to the following:

·       accountant,

·       architect,

·       computer systems analyst and other computer professionals,

·       doctors, dentists and other medical professions;

·       economist,

·       engineer,

·       forester,

·       graphic designer,

·       hotel manager,

·       industrial designer, interior designer,

·       librarian,

·       lawyer,

·       mathematician,

·       various scientists,

·       social worker and

·       teachers at the elementary, high school and college level. 

Each of these occupations has their own degree requirements.

What Sort of Documentation is Required?

The application requires evidence that the applicant has the required educational qualifications and job experience.  This includes a copy of the applicant’s college degree and letters from previous employers showing the applicant’s experience in the professional field.

If you’re the applicant is married or has unmarried children under 21, they can come with him. 

What is the Procedure to apply for TN visas?

Once all the required application forms and documentation is ready, the person applying needs to schedule an appointment with the Embassy or apply at the border in some cases.   

During the interview, the applicant will present all of the documents.  The applicant needs to be prepared to describe his/her qualifications for the job, professional experience, and the nature of the work offered. 

The officer considering the case will then make a decision after the initial interview.

Once inside the U.S., the visa can be extended by the applicant as long as the job remains in place.

Conclusion.

Professionals from other countries typically come to the United States on H1B visas.  Because there is annual limit on H1B visas and that limit has already been reached for fiscal year 2019, presently there are no H1B visas available until October 1, 2019.  The TN visa is a way for Mexicans and Canadians to avoid this backlog and come to the U.S. relatively easily, provided they have a job offer and the required qualifications.

WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.