Blog

Now that this year’s H-1B cap filing date of April 1st is fast approaching, many employers and foreign workers want to know, isn’t there any other option? For citizens of some countries, there are treaty-based visa categories for professional workers which may provide a viable alternative. Each is slightly different in its requirements and limitations.

For citizens of Chile, Singapore, Australia, Canada or Mexico, there are treaty-based visa categories for professional workers that remain available when the H-1B is not. One key difference is that the H-1B allows “dual intent,” so a worker may be present in the U.S. under H-1B status, and yet legally take steps to pursue permanent residence. All of the treaty-based work visa classifications for professionals require continued “non-immigrant intent,” so workers in H-1B1, E-3 or TN-1 status must have an un-abandoned residence abroad to which they intend to return. These visa categories are for salaried jobs with a U.S. employer; they do not allow self-employment or freelancing.

H-1B1: Chile & Singapore

Like the H-1B, the H-1B1 is for offered work with a U.S. employer in a professional specialty occupation – i.e., a job that requires at least a Bachelor’s or advanced degree in a field directly related to the job duties. The worker must have a related degree, and the U.S. employer must agree to pay the local prevailing wage for that occupation, and must file a Labor Condition Application with the U.S. Department of Labor, with the same attestation, compliance and Public Access File recordkeeping responsibilities that apply to an H-1B employer.

However, there the similarities end. No petition to USCIS is required, so the H-1B1 worker may take the certified LCA, employer’s letter, and original educational credentials, and apply for the visa abroad at a U.S. Embassy or Consulate. The annual cap (numerical limit) of 6,800 for the H-1B1 has never been reached, so these applications may be filed at any time year round, for an immediate start date. H-1B1 status is available in one-year increments, and is renewable, although Embassies may interpret the requirement of continued nonimmigrant intent quite strictly. There is no “portability” between different H-1B1 jobs, or from H-1B1 to H-1B.

While having Permanent Resident status in Singapore or Chile does not confer eligibility for H-1B1 status, third-country nationals (i.e., people who are not nationals or citizens of Singapore or Chile) who are married to or minor children of H-1B1 professionals are eligible for H-4 status as their dependents.

E-3: Australia

The E-3 is also for offered work with a U.S. employer in a professional specialty occupation – i.e., a job that requires a Bachelor’s or advanced degree in a field directly related to the job duties. The worker must have a related degree, and the U.S. employer must pay the prevailing wage for that occupation, and must file a Labor Condition Application with the Department of Labor, with the same attestation, compliance and Public Access File recordkeeping responsibilities that apply to an H-1B or H-1B1 employer.

No petition to USCIS is required, so the worker can take the certified LCA, employer’s letter, and original educational credentials and apply for the visa at a U.S. Embassy or Consulate. The annual cap of 10,000 for the E-3 has never been reached, so applications can be filed at any time, year-round, for a start date at any time. E-3 status is available in two-year increments, and is renewable. There is no portability between jobs for E-3 workers, no Premium processing for petition-based filings, and no automatic continuation of work authorization based on a timely-filed extension request**. For these reasons, travel abroad and a new visa application by the E-3 worker are often more efficient than filing a petition to extend or change employment.

TN-1: Canada & Mexico

The TN-1 visa category is available to citizens of Canada or Mexico who have a valid passport, a job offer to work in the U.S. in one of the 64 professions enumerated in Appendix 1603.D.1 to the North America Free Trade Act (NAFTA), and have the required education listed in the treaty for that profession. There is no prevailing wage requirement, and no filings with the Department of Labor, so unlike the H-1B1 and E-3, a TN-1 worker may be paid on a 1099 as an Independent Contractor if the agreement with the U.S. employer so specifies, but a TN-1 may not freelance or be self-employed in the U.S.

This category allows much less flexibility in terms of the job: the offered job must fit squarely into one of the 64 professional occupations listed in the treaty. TN-1 status is available in increments of one to three years, depending on the explicit terms offered by the employer, and is renewable. Canadian citizens are visa-exempt, and may apply at a border post or pre-flight inspection with their original educational credentials, resume and letters from past employers for any job requiring prior experience, and offer letter from the U.S. employer. Mexican citizens must apply for a machine-readable TN-1 visa, and bring their documents to a visa interview at a U.S. Embassy or Consulate.

**UPDATE: 01/15/2016– USCIS published a new final rule amending the work authorization regulations. H-1B1, E-3 and CW-1 (temporary workers from the Commonwealth of the Northern Mariana Islands) have all been added to the nonimmigrant classes deemed “work-authorized incident to status,” and all three have been added to the regulation that automatically extends work authorization with the same employer for an additional 240 days upon timely filing of a petition to USCIS for extension of stay in the same job. This rule takes effect on February 16, 2016. However, Premium processing still remains unavailable for petitions to extend stay or change employers for H-1B1, E-3 and CW-1 professionals.