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.