Guest post by: Matthew Myers
Professionals who are citizens of Australia, Canada, Chile, Mexico, and Singapore, benefit from an additional visa category compared to other nationalities, making it possible for U.S. employers to hire professionals from these countries year-round.
The most popular visa for professionals is the H-1B Specialty Occupation visa, but there is a cap of 85,000 new H-1B visas. The limited supply of H-1B visas creates an annual filing deadline of April, 1st for employment beginning (at the earliest) the following 1st of October. This is with less than a 50-50 chance that a petition for their employee(s) will get selected in a random lottery.
Employers would generally like to hire employees to start as soon as possible and aren’t happy about spending money and time on a petition without certainty that their candidate will be selected. Imagine the frustration of finding the perfect employee in May 2018 and being told that the only viable strategy would be waiting 11 months to apply the next year on April 1, 2019 for the person to start 16 months later on October 1, 2019.
Employers may sponsor Mexican and Chilean professionals under the TN visa category and the H-1B1 visa category, respectively.
The H-1B1 visa is a subset of the H-1B visa carved out specifically for professionals from Chile and Singapore as a result of free trade agreements between the U.S. and these countries. With a separate cap for each of these countries that has never been reached, a significant additional benefit is avoiding the lengthy processing times with U.S. Citizenship and Immigration Services and being able to apply directly for this visa at a any U.S. Consulate abroad and begin work generally within a week of application.
Created by NAFTA, the TN visa category allows Canadian and Mexican nationals whose profession is on the NAFTA list of occupations with a job offer in the United States to fill a professional position. Canadians can actually apply at the border for these visas, whereas Mexicans must apply at a U.S. Consulate but still avoid the backlogs and processing step with U.S. Citizenship and Immigration Services compared to the H-1B.
These visa categories require nonimmigrant intent, whereas the H-1B visa permits for dual nonimmigrant and immigrant intent, which means that it may be recommended to transition to the H-1B or other visa category that permits for immigrant intent if the decision is made to apply for an immigrant visa, also referred to permanent residency or “green” card. Additionally, the TN visa is dependent on the NAFTA and could be impacted by renegotiations or withdrawal, so employers may choose to change the status of employees from TN to H-1B or other visa strategy after they are admitted to the United States in lawful TN status.
TN and H-1B1 visas are currently available year-round to support hiring and onboarding employees within a reasonable timeframe when you need them.
About the Author
Matthew Myers is an employment-based immigration attorney with Foster LLP, a leading immigration law firm delivering a full spectrum of U.S. and global immigration solutions. Prior to joining Foster, Matthew clerked for U.S. District Judge Orlando L. Garcia as well as the U.S. Citizenship and Immigration Services Office of Chief Counsel. He is admitted to the State Bar of Texas, currently serving as the Vice Chair of the Immigration and Nationality Law Section Board, and is a member of the American Immigration Lawyers Association on the Global Migration Section.