This document discusses options for hiring an employee who requires a work visa when H-1B visas are unavailable. It outlines several nonimmigrant visa categories that could be alternatives to the H-1B, including visas for F-1 students (CPT, OPT), J-1 exchange visitors, O-1 visas for those with extraordinary ability, TN status for Canadians and Mexicans, E-3 visas for Australians, and considering immigrant visas instead. It cautions that an individual cannot volunteer if the work would normally be paid employment.

1. How do I hire an employee whoHow do I hire an employee who
requires a work visa when there arerequires a work visa when there are
no H-1Bs available?no H-1Bs available?
Presented by
Russell C. Ford, Esq.
Graham Adair
207.517.2628
rford@grahamadair.com

2. AGENDAAGENDA
• Nonimmigrant Options
• Could you just consider a
green card instead?
• Questions & Answers

3. NONIMMIGRANT STATUSNONIMMIGRANT STATUS
• Limited in Duration of Stay
• Limited in Activities Allowed
• Limited to Employer/Sponsor

4. WHAT IS THE H-1B CAP?WHAT IS THE H-1B CAP?
• The “cap” refers to any “new” H-1B, e.g., an
individual that has not previously held H-1B status
within the last six years and/or is not seeking a new
6-year period of stay after being outside of the U.S.
for at least 365 days.
• H-1B Cap – 65,000 “Regular”/20,000 “Master’s Cap”
• Institutions of Higher Education (or affiliated
non-profit entities) are exempt from Cap

5. F-1 STUDENTS: DO YOU MAINTAIN AF-1 STUDENTS: DO YOU MAINTAIN A
RELATIONSHIP WITH A COLLEGE?RELATIONSHIP WITH A COLLEGE?
• Performed on school premises (this
includes commercial enterprises
that provide direct student services
located on-campus) OR
• Performed at an off-campus
location, which is educationally
affiliated with the school.
• “Educationally affiliated” is
defined
as: “associated with the school’s
established curriculum or related
to a contractually funded
research project
at the post-graduate level” and
“an integral part of the student’s
educational program.”
• Limited to 20 hours per week
(exception: 40 hours per week
during regular school
breaks/vacations).
• Cannot displace US Citizen worker.

6. F-1 STUDENTS: ARE YOU PROVIDING AF-1 STUDENTS: ARE YOU PROVIDING A
PRACTICAL TRAINING OPPORTUNITY?PRACTICAL TRAINING OPPORTUNITY?
Curricular Practical Training (“CPT”):
•Must be a full-time F-1 student;
•Must have completed one academic year of study;
•Must be directly related to the major area of study;
•Utilized for alternative work/study, internship, co-op
program, or “any other type of required internship or
practicum that is offered by sponsoring employers through
cooperative agreements with the school.”
•Students who have utilized 12 months or more
of CPT or ineligible for Optional Practical
Training.

7. F-1 STUDENTS: POST-GRADUATIONF-1 STUDENTS: POST-GRADUATION
Optional Practical Training (“OPT”):
•Must be directly related to the major area of
study;
•Student must obtain authorization from
the International Students Office
through SEVIS and then apply to the USCIS
for an Employment Authorization Document
(“EAD”) – student cannot begin employment
until the EAD has been issued;
•Limited to 12 months of total OPT time whether
used during, after or both (note – part-time OPT
employment during the school year is deducted
from the 12 months at only a ½ rate, i.e., 2 days
of part-time would be deducted from the overall
period as only 1 day of OPT).
•If you are an E-Verify registered employer and
the individual graduated from a STEM degree
program, this could be extended an additional
17-month period.

8. J-1 EXCHANGE VISITOR EMPLOYMENTJ-1 EXCHANGE VISITOR EMPLOYMENT
• Work-authorized categories
include professors, research
scholars, trainee, specialists,
interns
• J-1 Trainees
• Pre- or Post-graduation
• Up to 18 months
• J-1 Interns
• Graduate of foreign degree
program with less than one year
of work experience; or
• 5 years of work experience
• Dependents may apply for
work authorization

9. H-1B PORTABILITY: HIRING AN INDIVIDUALH-1B PORTABILITY: HIRING AN INDIVIDUAL
ALREADY IN H-1B STATUSALREADY IN H-1B STATUS
• H-1B worker may begin
employment with new
employer as soon as the
H-1B petition is filed
• Broader vs. stricter
interpretation of
portability
• Pay stub = evidence of
maintaining status

10. O-1 EXTRAORDINARY ABILITY
• Intended only for the top few in
the field of expertise in the world
• Must have:
• Major award or prize (Nobel,
Fields, etc.); OR
• Documentation from 3 of 8
categories specified in the
Regulations; OR
• Other “comparable evidence”
• The job need not require
extraordinary ability
• Initial O-1 period is 3 years, annual
extensions indefinitely thereafter
in one-year increments (foreign
national must continue to
demonstrate extraordinary ability
and achievements)

11. TN CLASSIFICATIONTN CLASSIFICATION
• Available only to Mexican and Canadian Citizens
• Specific list of occupations in NAFTA
• One year initial admission – extensions can be
granted in one-year increments
• Biggest obstacles: Demonstrating nonimmigrant
intent and “fitting” within defined occupations
• Processing:
• For Canadian Citizens: Apply directly at Class A POE/PFI
• For Mexican Citizens: Apply directly at the US Embassy

12. • No CIS petition required; apply for visa
directly with Consulate but limited to
Australian citizens
• All visa issuing US consulates in
Australia accept applications
• If in the US in an eligible status, can
apply to change status to E-3 through
the USCIS
• Admitted for two years
• No maximum stay for E-3s
• Limited to 10,500 per year
• Spouse can get authorization
to work
E-3 CLASSIFICATIONE-3 CLASSIFICATION

13. • Job offer from US employer (E-3 support letter)
• Must be filling a position in the US that requires
attainment of a bachelor’s degree
• Must have foreign equivalent of a US bachelor’s
degree related to field of work (experience
equivalency allowed)
• Certified Labor Condition Application (LCA)
• All other normal visa application documents
Evidence that stay in US will be temporary
E-3 REQUIREMENTSE-3 REQUIREMENTS

14. • Singaporeans and Chileans (H-1B1): Nationals of Singapore and Chile have their own H-1B
quota numbers available under respective treaties between those countries and the U.S.
The numbers available under those treaties have yet to be exhausted.
• E-1/E-2: If the potential employer shares the same nationality as the foreign national
employee, and if that nationality is a country which has a qualifying treaty with the U.S.,
either E-1 treaty trader or E-2 treaty investor is worth exploring.
• R-1: If the nature of the employment is a religious vocation, the R-1 religious worker visa
becomes a readily available, non-capped option.
• P Status: If the nature of the employment is of an artistic or entertainment nature, one
of the P visa categories may be an option.
• I Status: The I visa is available for foreign nationals working for a foreign information
media outlet -- press, radio, film or other -- in the U.S.
• B-1 in Lieu of H-1B: If a foreign national is coming to work in an H-1B-eligible position in
the U.S., but the source of the H-1B's salary will be overseas, a B-1 in lieu of H-1B option
should be explored. This option is most appropriate for foreign nationals who have an
overseas employer which requires a foreign national to provide professional services for
the benefit of the overseas employer in the U.S.
• H-3: Many employers have training programs for new graduates as the first step of their
H-1B employment. The training program may be formal enough to qualify the foreign
national for H-3 status.
OTHER CATEGORIES TO CONSIDEROTHER CATEGORIES TO CONSIDER

15. IMMIGRANT VISASIMMIGRANT VISAS
• Available for hiring an
employee on a
“permanent” basis
• Permanent Residence
• No limit on period of stay
• No limit on employment
• Not US citizens – Cannot
vote; could lose status for
extended absence from
US or committing certain
offences

16. ““GREEN CARDS”GREEN CARDS”
THROUGH EMPLOYMENTTHROUGH EMPLOYMENT
• First Preference (EB-1)
• Extraordinary Ability, Outstanding
Researchers and Professors, and
Managerial or Executive
Transferees
• No Labor Certification requirement
• Second Preference (EB-2)
• Exceptional ability, National
Interest Waiver (NIW), and
advanced degree professionals
• No Labor Certification for NIW &
Exceptional ability
• Third Preference (EB-3)
• Professional, skilled, and
unskilled workers
• Why do the Preference
categories matter?

17. HIRING AN INDIVIDUAL WITH A PENDINGHIRING AN INDIVIDUAL WITH A PENDING
GREEN CARD APPLICATION – POSSIBLE?GREEN CARD APPLICATION – POSSIBLE?
• Where is the individual in the “green card”
process?
• If the individual has a pending I-485
application with an EAD card, then there is a
good possibility that you could employ that
individual immediately and without
disrupting his application.
• If the individual is in the first phase of the
process, Labor Certification, or the second
phase of the process, I-140 Petition, with no
pending I-485, he may be “hirable” under H-
1B portability, but you would have to re-start
the green card process down the road.

18. CAN THE INDIVIDUAL VOLUNTEERCAN THE INDIVIDUAL VOLUNTEER
AT OUR COMPANY?AT OUR COMPANY?
• If the position is normally filled by a paid
employee, whether FT or PT, the DoL has
taken the position that this is not a
“volunteer” and it could run afoul of both
immigration and wage and hour provisions.
• There are many visa options, which we have
discussed today, so, if there are questions
as to whether it would qualify as a
“volunteer,” then you are probably better
off exploring proper visa options so as to
avoid such penalties.

19. THANK YOU.
Presented by
207.517.2628
rford@grahamadair.com
For additional information please go to:
www.immigrationsquared.com
or
www.grahamadair.com