Foreign workers find H-1B visa alternatives
Feridun Mert Celebi didn’t want to play the odds.
If he’d applied for an H-1B work visa this year, his application would land in a pool of 199,000 other hopefuls vying for 85,000 slots. If he were one of the lucky ones, he’d still have a months-long wait for a decision.
Instead, he’s angling for an O-1 visa, a temporary work visa reserved for “aliens of extraordinary abilities.”
“Maybe I made a mistake, but given the odds of getting it and the money I was going to spend, I don't want to waste time,” said Celebi, a Turkish citizen, Yale graduate and co-founder of a health technology startup.
He’s one of tens of thousands of foreigners who aren’t using an H-1B visa as their ticket to living and working in the United States. The odds of securing
an H-1B have become slimmer over the years, and President Trump promises changes that will curb the visa program.
So the use of alternatives has been growing. Since 2012, the numbers of O-1 visas and L-1 visas (which are for intracompany transfers) have grown significantly, according to Department of Labor data. Such visas are generally processed faster and with less uncertainty than H-1B visas, which are capped at 85,000 a year for for-profit companies and awarded through a lottery system.
“People don’t want to stand in line,” said Abhinav Lohia, a partner at Davies & Associates, an immigration law firm. “A lot of business owners don't want to invest in talent and realize the person isn't eligible to work in the U.S.”
Hiring an employee dependent on an H-1B visa can be a gamble for employers. In recent years, the number of applicants was nearly triple the number of available visas. Employers must sometimes put work on hold while they wait to hear from immigration officials if a candidate received the visa.
Some Silicon Valley companies say the gamble is worth it, because they rely on these visas to staff engineering positions. More than 15 percent of Facebook’s employees are in the U.S. on an H-1B visa, according to a Reuters analysis of government data. But critics say companies use loopholes in the program to squeeze out American workers in favor of foreigners willing to work for lower salaries.
After a long upward trend, applications for H-1B visas dropped this year. Experts attributed this year’s 16 percent dip to several factors. Some cite worries over the administration’s immigration policies. But another, immigration attorneys and other experts said, was that people who qualify for other visas are exercising those options.
“Most of the time we would say that the H-1B was a preferable route, because the threshold is lower and less expensive,” said Sam Adair, a San Jose immigration attorney. “But given the fact that it is not guaranteed that you’ll get an H-1B when you apply for one, it makes the O-1 or L-1 more attractive as alternatives.”
Unlike the H-1B, these visas are not subject to an annual cap and are awarded based on merit. The number of O-1 visas issued annually increased by about 5,000 from 2012 to 2016, while L-1 visas granted yearly increased by about 17,000 in the same time period. As with H-1B visas, Indian citizens received the vast majority of L-1 visas.
Kapil Rana, president of Indian software company KapsPro, was one of those. He came to the U.S. last year to start a branch of his company in Mountain View, where he has hired two American workers and plans to hire at least six or seven more.
Rana never considered an H-1B, which is aimed at employees rather than entrepreneurs. But if his company begins to grow, Rana said, he would consider using H-1B or L-1 visas to bring employees from India if he cannot find Americans to fill that job.
“There is a big market in the U.S., and if you can be physically here, you can create more business,” said Rana, who moved to the Bay Area from New Delhi. “I’m here to create jobs, and that’s what (Trump) wants.”
However, these alternatives come with their own hurdles and criticisms.
The L-1 visa lets companies relocate an employee from an overseas office to a U.S. subsidiary. Critics say it gives companies who can’t land H-1B visas an opportunity to hire people overseas and then transfer them over to the U.S. after a year or so.
“These are being used in some cases as a run-around in the limits of the law,” said Ira Mehlman, a spokesman for the Federation of American Immigration Reform. “There are legitimate exceptions to be made, but like anything else, it has to be adequately policed.”
The O-1 visa, which is reserved for people with extraordinary abilities — think actors, singers and athletes — doesn’t have a high enough bar, some say. There was a call a few years ago for revoking the visa of singer Justin Bieber, a Canadian national. But Adair, a lawyer who has filed for countless O-1 visas, said the applications require an exhausting amount of paperwork and cost thousands of dollars, so if someone didn’t have a good shot, they wouldn’t even bother.
Celebi, who has two more years to secure a work visa before an extension to his student visa runs out, said he may have a good shot at the O-1. He is a co-founder and chief technology officer of PatientBank, a San Francisco startup that went through Y Combinator, a prestigious Silicon Valley incubator. The company enables customers to acquire their medical records from a variety of providers. Over the past six months, it has more than doubled the number of medical records processed, Celebi said.
“All of my family is in Turkey, so I could technically go work somewhere in Europe and be close to them,” he said. “But right now I’m learning and interested in tech, and San Francisco and the Bay Area is the best place to be for that.”
The H-1B wasn’t worth Celebi’s effort, he said. But getting a chance to work in the epicenter of technology, even for a little while, still is. For that, he’ll play the odds.