Alternative to the H-1B Category

Examples of H-1B Nonimmigrant Situations:

• A U.S. company wants to transfer an engineer from a foreign affiliate to the United States. The engineer will work temporarily on a construction project the firm has undertaken. The Engineer has been employed by the foreign affiliate for less than one year and therefore would not qualify for L-1 consideration. Under these circumstances, the foreign employee, although ineligible for an an intracompany transfer under the L-1 category ,can obtain an H-1B visa to work in the U.S.

• The same situation as above would apply if the foreign affiliate and U.S. company are not linked in a manner acceptable to effect an intracompany transfer under the L-1 category; the H-1B visa category could be used.

• The U.S. company may decide to recruit an engineer to work on the construction project. The project will be built using a particular construction technique prevalent in Sweden. Through inquires made to professional associations in the U.S. and Sweden, the company becomes familiar with the work of a Swedish engineer, to whom they offer the position on a temporary basis. His entry to the U.S. could be carried out in the H-1B category.

• In the same situation, the company discovers that this construction technique is taught at a U.S. engineering school. It sends a recruiter to the school, and although several American students have the requisite skill, the company decides to make a job offer to a Swedish student, because of her outstanding credentials. Upon the student's graduation, the company makes a job offer to this student, who can then be classified in H-1B status.

If the H-1B category dose not seem appropriate for a particular alien employee, consider these alternatives:

• The L-1 Category 

The benefits of the L-1 category, particularly for managers and executives, are so great that this category should be considered even if the H-1B category applies. Remember: The employee must have been employed with an affiliate of the U.S. employer for one continuous year within the preceding three years.

• The E-1 and E-2 Category 

If the U.S. company can qualify under a treaty of commerce and navigation between the U.S. and the country of the company's "nationality," then alien employees may be eligible for these visas. Employers who have already demonstrated their company's eligibility for E classification at a U.S. consulate often prefer to use the E category over the H-1B or L category because of the relative ease of qualifying individual employees at the same consulate and the lack of a prior INS partition as required for the H1_b and L categories. 

• The H-2B Category 

If the employee will fill a temporary position-the employer's actual need for someone with the alien's skill is temporary- the H-2B category can be used. This category is more cumbersome than H-1B category, however, because a certification must first be obtained from the Department of Labor that qualified U.S. workers are unavailable to fill the temporary positions being offered to the alien worker.

• The H-3 and J-1 Category 

If the main purpose of the U.S. assignments is to acclimate the alien employee to U.S. business methods or to teach the alien the company's own practices, procedures or product, his or her temporary employment in the U.S. may properly be viewed as a period of training; in this case, the alien may be eligible to enter the U.S. on a nonimmigrant trainee visa.

• The H-1C Category 

With the regard to nursing position, the Nursing Relief for Disadvantage Areas Act of 1999 creates a new H-1C nonimmigrant category for foreign nurses who will work in medically under-served areas of the U.S.. This category is limited in scope. To participate in the H-1C program, the health care facility must:

1. be located in a health professional shortage area (HPSA)

2. have at least 190 acute care beds

3. have had, since 1994, a Medicare population of at least 35 percent; and

4. have had, since 1994, a Medical Population of at least 28 percent. Facilities participating in the program must take LCA-type attestations designed to protect the wages and working condition of U.S.. nurses/An annual cap of 500 new H-1C admission is established and the program sunsets four year after implementing regulation are issued ( such rules must be published by February 10,2000).The INS has not yet issued regulations as of February 1,2000.

Note : The INS has held that an employer can simultaneously file alternative petitions for the same employee, e.g., an H-1B and L-1 petition. This course of action might be desirable in cases in which the alien's qualification for one classification is uncertain, such as an alien who may have specialized knowledge as defined by the L-1 category and who may also have professional qualifications as defined by the H-1B category, when in each case the alien's credentials make a marginal case. If both petition are approved, however, the employer and the alien must choose which category it wants to use. The alien can not be admitted to the U.S. or change nonimmigrant status to two different nonimmigrant categories simultaneously.

For further information, send your query to Aparna Davé.