H-1B Alternatives in Light of the Looming 2017 Visa Cap & Lottery

February 15th, 2017

As the juggernaut of the H-1B visa lottery approaches, which bestowed visa numbers on only approximately 30% of the lucky petitioners last year, alternatives to working in the US must be considered. I have already written more extension blogs about some of these (international entrepreneur parolee and the national interest waiver (NIW) immigrant), but I will provide an outline of these as well as others most likely to be used.

For nonimmigrants, or temporary workers, there are the E-1/E-2 treaty trader/investor, the L-1A/L-1B intracompany transferee manager/executive or specialized knowledge workers, the O-1 extraordinary ability alien, the F-1 student with curricular or optional practical training, the J-1 exchange visitor, the P-1 athlete, coach or artist, the H-2A or H-2B temporary worker, and the international entrepreneur parolee (not a nonimmigrant visa classification but still a temporary status).

E-1/E-2 treaty trader/investor: There must be a treaty between the US and the foreign national’s country and the US petitioner must be at least 50% owned by the foreign national’s country (either a company or individual/s). For the E-1 there must be substantial trade and for the E-2 investor there must be substantial investment made into the US entity, either by the individual E-2 investor or by the others into the company in the case of the E-2 essential worker. The E-2 investor must be directing and controlling the US entity and the entity must be creating jobs and enough income to not only support the investor and her family. The E-1 and E-2 visas can be applied for directly at a US consulate abroad (not with USCIS in the US).

L-1 intracompany transferee: L-1 visas are available to persons who have worked abroad for one continuously year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a firm or corporation or other legal entity, or an affiliate or subsidiary thereof, and who are being transferred temporarily to the United States to work in an executive, managerial, or specialized knowledge capacity for the same employer or a subsidiary or affiliate thereof. The L-1B has a maximum period of stay of five years, compared to the L-1A of seven years. There may be an L-1A new office petition to start up an affiliated company in the US as a manager or executive and this is initially granted for one year. No significant investment or treaty is required. However, the foreign entity must remain operating abroad while the L-1 is working in the US.

O-1 extraordinary ability: An alien may be eligible for status in the nonimmigrant O-1 category if he can show extraordinary ability in the field of science, education, business or athletics. Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor and sustained national or international acclaim and recognition for achievements in the field of expertise. Evidence of such extraordinary ability includes receipt of a major, internationally recognized award (such as the Nobel Prize) or at least three of the following: prizes or awards; membership in groups requiring outstanding achievements; judging the work of others; original scientific, scholarly or business contributions; authorship of scholarly articles; playing a critical role for a distinguished organization; high salary or comparable evidence.

F-1 student: An F-1 student may be able to obtain work authorization either during or after completion of her studies in the form of curricular or optional practical training. Typically, an F-1 student will receive one year of post-graduation optical practical training (OPT), and if her degree is in one of the STEM fields (science, technology, engineering or math) the she may be eligible for two more years of OPT. If the student uses all of her OPT then she may be able to go back to school and obtain curricular practical training to study and work simultaneously.

J-1 exchange visitor: A foreign national may work, teach or study in the US pursuant to this visa, but it is more limited. Also, some J-1s may be subject to INA Section 212(e) that requires the visa holder to return to her home country for two years before obtaining an H-1B or legal permanent residency. Therefore, one must be wary of obtaining a J-1 visa.

International Entrepreneur Parolee: Taking effect on July 16, 2017, USCIS will authorize parole for foreign entrepreneurs who can demonstrate that they will provide a significant public benefit to the United States as a result of economic growth or job creation resulting from their entrepreneurial activities. Parole will be awarded on a case-by-case basis with respect to entrepreneurs of start-up entities who can demonstrate substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States. Such potential would be indicated by, among other things, the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities. If granted, parole would provide a temporary initial stay of up to 30 months (which may be extended by up to an additional 30 months) to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.

Finally, one of the immigrant visa option for those who wish to self-petition is the national interest waiver (NIW) in the employment-based second (EB-2) category for those with an advanced degree or exceptional ability. The NIW will not provide quick status, since there is no premium processing and it can take six to 12 months on average for processing and then legal permanent residency must be obtained through consular processing or adjustment of status in the US (I-485). Also, for those from India or China, the long backlog for an immigrant visa does not make this option practical. In the recent AAO case of Matter of Dhanasar, the criteria were revised, making it easier for entrepreneurs to qualify. The petitioner must demonstrate (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

US Final Rule on Parole for International Start-Up Entrepreneurs

January 16th, 2017

USCIS has issued its final rule regarding exercise of its parole authority on a case-by-case basis regarding entrepreneurs of start-up entities who can prove through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant benefit to the US. The rule is effective July 17, 2017.

The potential of such a significant benefit to the US could be demonstrated by the receipt of substantial capital investment from US investors with track records of successful investments or being in receipt of significant grants or awards from certain Federal, State or local government agencies. Also, the applicant must show that he or she has a substantial interest in the start-up entity, will play an active and central role in its operations and would substantially advance the entity’s ability to engage in research and development and create new jobs in the US.

Parole can be issued for up to 30 months (that can be extended for an additional 30 months) for the applicant to oversee and grow his or her start-up entity in the US.

The greatest benefit of this rule is that it is not dependent on the existence of a treaty between the US and the applicant’s country of citizenship, like the E-2 treaty investor visa. Foreign nationals from India and China (mainland) have been excluded from the E-2 program because of the absence of such a treaty.

New Rule for Parole for Startup Entrepreneurs in the US

August 31st, 2016

USCIS has proposed a new rule to allow entrepreneurs of start-up entities to obtain parole to start or grow their businesses in the US. Parole is temporary permission to remain in the US.   The new rule would grant USCIS authority to use its existing discretionary parole authority to include entrepreneurs of startup businesses whose stay in the US would significantly benefit the US by the substantial and demonstrated potential for rapid business growth and job creation.

In particular, USCIS, on a case-by-case basis, may parole eligible entrepreneurs of start-up entities:

  • Who have a significant ownership interest in the start-up entity (at least 15%) and play an active and primary role in it;
  • Whose startup was formed in the US within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, which can be shown by:
    • Receiving significant investment of capital (of at least $345,000) from certain qualified US investors with track records of success;
    • Receiving significant awards or grants (of at least $100,000) from certain  federal, state or local government bodies; or
    • Partially satisfying one or both of the above criteria along with other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

The entrepreneur may be granted an initial stay of parole of two years to run the startup entity and a subsequent  stay of an additional three years only if the entrepreneur and the startup entity continue to provide a significant benefit as evidenced by substantial increases in capital investment, revenue or job creation.

The primary advantage of this new parole status for startup entrepreneurs, as compared to the E-2 nonimmigrant investor visa, is that there is no requirement that there be a treaty between the entrepreneur’s country of citizenship and the US.  Currently, the US does not have such treaties with many countries, including India, China, Russia, Brazil, Portugal, Hungary, Vietnam, Saudi Arabia and South Africa.  However, citizens of these countries have been able to apply for an EB-5 investor immigrant visa if they had can invest $1 million or $500,000 (for certain areas of high unemployment regions of the US).

E-2 Treaty Investor Visa Approved for Tailor Shop Owner

September 25th, 2013

The US Consulate recently granted an E-2 treaty investor visa for my client who purchased a tailor shop in the US, although he did not have what he thought was substantial funds to invest.  In order to obtain an E-2 visa as a primary investor the alien must show that he or she has made a substantial investment in a US enterprise (or will do so upon issuance of the visa).  US immigration laws do not specifically define what is substantial, but rather provide a narrative in terms of proportionality.  The greater the funds needed to operate the establishment the smaller the percentage of such funds the alien must invest.  For example, if an alien were to open a new Toyota plant in the US worth millions of dollars, then she would not be expected to invest 90% of the value of this enterprise but far less.  However, if she were to purchase a small cobbler shop then she would be expected to invest far more and maybe 90%.

Therefore, it is important to emphasize that it is not the quantity that the alien is investing that is key but the percentage of the total value of the enterprise.