May 2008

Hiring Foreign Nationals Without the Benefit of H-1B Visas

Holland & Knight Newsletter
Tara L. Vance

All employees in the United States need work authorization. This is relatively easy for U.S. citizens, who can evidence their authorization to work in the U.S. by showing their U.S. passport or state driver’s license and a U.S. birth certificate or social security card. Foreign nationals, however, can show that they are authorized to work in the U.S. by presenting, among other things, a green card or a state driver’s license and temporary work authorization issued by the United States Citizenship and Immigration Service (USCIS). The Form I-9 (Employment Eligibility Verification), which must be completed for all employees, specifically lists the documentation that can be shown to evidence a person’s authorization to work in the U.S.

H-1B visas are the most common visas used for hiring foreign nationals who are professionals (i.e., individuals who have at least a U.S. Bachelor’s degree or the equivalent and who hold a position in the U.S. that requires such a degree). H-1B visas have been the subject of recent media attention, primarily because Congress limits the number of H-1B visas that can be issued each year and the annual cap is rather low. As a result, the H-1B annual cap was met during the recent filing period and as of April 7, 2008, there are no longer any H-1B visas available unless an employer is cap-exempt. In general, in order to be cap-exempt, an employer must be an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965, a nonprofit organization or entity related to or affiliated with an institution of higher education as stated above, a nonprofit research organization or a governmental research organization. Unless an employer is cap-exempt, it cannot apply for a H-1B visa petition for a foreign national until April 1, 2009. That means the earliest the H-1B visa petition can be requested valid (and the earliest the foreign national can begin working pursuant to the H-1B visa petition, assuming it is granted by the USCIS) is October 1, 2009.
Employers who missed the H-1B filing deadline and who are not cap-exempt must look to other nonimmigrant visa types that authorize employment of foreign nationals. Such employers should consider the following types of visas:

B-1 visas: B-1 visas are reserved for foreign nationals entering the U.S. temporarily to engage in employment activities as an employee of, for the benefit of and on behalf of the foreign national’s non-U.S. employer. A B-1 visa does not enable a foreign national to engage in activities in the U.S. labor market or work for a U.S. employer. In certain industries, the USCIS has drawn fine lines, such as those in the transportation industry which focus on international trade. In general, foreign nationals transporting goods across the U.S. border are deemed to qualify for a B-1 visa whereas foreign nationals coming to the U.S. for purposes unrelated to international trade do not. Employees of foreign airlines and private yacht crewmen also typically qualify for B-1 visas.
C visas: C visas are for foreign nationals who are passing through the U.S. on their way to another country. C visas are available in several instances, including for a foreign national who simply passes through the U.S. under certain agreements with transportation lines. Such foreign nationals may travel through the U.S. without having to fulfill normal documentary requirements (referred to as “transit without visa”). In the “transit without visa” situation, the foreign national must enter the U.S. at a designated international airport and the individual’s stay in the U.S. may not exceed eight hours. Otherwise, a foreign national entering the U.S. in C visa status is limited to a period of stay not to exceed 29 days.
D visas: D visas are for crewmembers, including workers on both ships and airplanes, who are part of the regular functioning of the ship or airplane. In general, D visa holders are not permitted to leave the ship or airplane without first meeting with and obtaining a conditional landing permit from a USCIS immigration officer.

E visas: E visas are treaty-based and provide E visa status to a foreign national who is from a treaty country and is coming to the U.S. to work for a company owned by nationals of the same treaty country satisfying the prerequisites for such E visa status. The two most common types of E visas are E-1 treaty trader visas and E-2 treaty investor visas. E-1 visas require the U.S. employer to satisfy certain trade requirements between the U.S. and the treaty country. E-2 visas require the U.S. employer to satisfy certain investment requirements between the U.S. and the treaty country.

There is also an E-3 visa specifically for nationals of Australia. The E-3 visa is similar to the H-1B visa discussed above, but it also contains elements of the E visa. Essentially, E-3 visas are for Australian nationals entering the U.S. to perform services in a specialty occupation, which is an occupation requiring theoretical and practical application of a body of highly specialized knowledge with the attainment of at least a Bachelor’s degree (or the equivalent) in the specialty area.

L-1 visas: There are two types of L-1 visas: L-1A visas for intracompany executive or manager transferees and L-1B visas for intracompany specialized knowledge transferees. The main prerequisite for both L-1 visas is that the foreign national must have worked for an affiliate company of the U.S. employer outside of the U.S. for at least one year in the three years prior to the foreign national coming to the U.S. and have the required managerial, executive or specialized knowledge background.

Although many employers prefer to hire professionals from other countries using H-1B visas, most employers will not be able to apply for such visas until at least April 1, 2009. Creative employers will attempt to rely on other types of nonimmigrant visas to continue to bring talented employees to the U.S. This article describes only a few of the types of visas which these employers may attempt to access.

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