H-1B Alternative Series: Flexibility In Foreign Trade And Treaty Visas

Our series exploring alternatives to the H-1B continues with foreign trade and treaty visas.

Was your petition one of the estimated 148,000 not selected in this year's H-1B lottery? Is your client from one of the 79 countries with which the United States maintains treaties of commerce or navigation?

A free trade or treaty based visa may serve as a good alternative during times of H-1B unavailability. Both the TN and E visa categories have flexible features that can be instrumental to establishing a U.S. presence for a foreign company.

TN Visa

Under the North American Free Trade Agreement (NAFTA), qualifying citizens of Canada and Mexico may work for employers in the United States for a temporary duration with TN (Trade NAFTA) status. TN status can be granted for up to three years and extended in up to three-year increments. This visa option has a number of pros, as there is no limit on the number of years a person may remain in the U.S. under TN status as long as the individual maintains "nonimmigrant intent," meaning no intent to remain in the U.S. permanently. The visa category also does not have a limit on how many TN applications may be approved each year. Canadian citizens may apply directly at a U.S. port of entry, while Mexican citizens must apply at a U.S. consulate. Applying for TN status does not require a labor condition application (LCA) and there are no prevailing wage requirements, unlike the H-1B.

The most specific attribute of the TN visa is its limitation to certain professions, as TN status is available for 63 specific professions that have their own prerequisites. From accountants to zoologists, the professions cover a wide range, but the required credentials for each can vary from bachelor's degrees to work experience.

E-1 or E-2 Visa

If a needed employee or entrepreneur is a citizen of a country with which the United States maintains a treaty, the E visa treaty category is another option for foreign enterprises to build a commercial presence in the U.S. The E-1, or treaty trader visa, allows a national of a treaty country to be admitted to the U.S. to engage in international trade. The E-2, or treaty investor visa, similarly allows a national of a treaty country to be admitted when investing a sizable amount of capital in a U.S. business. Both categories require the U.S. enterprise to be majority owned by nationals of the treaty country, and both are available to either owners or essential employees. The 79 treaty...