What Are My Alternatives If I Don’t Get an H-1B Visa Number?

January 8th, 2017

If a foreign national is not lucky enough to receive a number under the H-1B visa cap lottery, then there are other nonimmigrant visa alternatives for working in the US. The most popular ones are the L-1 intra-company transferee, E-1 or E-2 treaty trader or investor (this article will focus on the E-2) or O-1 extraordinary ability alien.

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 or managerial (L-1A), or specialized knowledge capacity (L-1B) 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.

A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has: (1) a “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge of the processes and procedures of the company. INA 214(c)(2)(B).

The foreign employee may also be eligible for L-1A classification if he or she has served as a manager, functional manager or executives. The term “managerial capacity” means an assignment within an organization in which the employee primarily:

1. Manages the organization, or a department, subdivision, function or component of the organization;
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
3. Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or employees are directly supervised; or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. (A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.)

“Managerial capacity” involves not only managing other people, but also managing an essential function. In order to demonstrate that the beneficiary is managing a function (“functional manager”), it must be shown that the beneficiary:

1. Manages an essential function within the organization, or a department or subdivision of the organization;
2. Functions at a senior level within the organizational hierarchy or with respect to the function managed; and
3. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

“Executive capacity” means an assignment within an organization in which the employee primarily:
1. Directs the management of the organization or a major component or function of the organization;
2. Establishes the goals and policies of the organization, component, or function;
3. Exercises wide latitude in discretionary decision making; and
4. Receives only general supervision or direction from high level executives, the board of directors, or stockholders of the organization.

If the foreign employee is coming to the United States as a manager or executive to open or to be employed in a new office in the United States (in active operation for less than one year), it must be demonstrated that:

1. Sufficient physical premises to house the new office have been secured;
2. The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive or managerial authority over the new operation; and
3. The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position as defined above.

An alien is classifiable as a nonimmigrant treaty investor (E-2) if the following is demonstrated:

1. A requisite treaty exists between the United States and the country of which the treaty enterprise is a “national” (there is no treaty between the US and India);
2. There is at least 50% ownership of the investing enterprise by nationals of the treaty country;
3. There is citizenship in the treaty country by the principal investors and enterprise employees seeking admission through the treaty enterprise;
4. The alien has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;
5. The alien is playing an essential role with the company, either as the investor who will develop and direct the enterprise, or as a qualified manager or highly trained and qualified employee; and
6. The alien intends to depart from the United States upon the termination of E-2 status.

Requirements (4) and (5), regarding the investment itself, are the most challenging aspect of the treaty investor visa petition. More specifically, it must be shown that:

1. The investor has made an irrevocable commitment of funds that represents an actual, active investment;
2. The investment is substantial, taking into account only those financial transactions in which the investor’s own resources are at risk;
3. The investment is not marginal in nature, that is, one that will only support the investor and his family; in most cases, it should create job opportunities for U.S. workers; and
4. The investor will develop and direct the investment.

The main differences between the L-1 and E-2 are that the E-2 does not require that the foreign national worked at least one year abroad for the qualifying company and that the L-1 does not require a significant investment nor a specific treaty so that a foreign national from any country can qualify. The most significant difference regarding legal permanent residency is that the L-1A has an immigrant counterpart in the EB-1C multinational petition, which means that the L-1A may qualify for faster-track legal permanent residency, bypassing the PERM labor certification process. No such special immigrant visa petition pertains to the E-2. The foreign national would have to invest $500,000 or $1 million in order to qualify under the EB-5 investor immigrant visa program, which has considerably greater requirements than the E-2 (although it is not restricted to treaty countries).

In some instances, the foreign national may qualify for both the L-1 and the E-2 (or E-1), in which case it is critical to consult with an attorney to review the other aspects of these nonimmigrant visas and the foreign national’s ultimate desire to obtain legal permanent residency in the US.

In order to obtain O-1 status extraordinary ability status, one must demonstrate extraordinary ability in the field of science, education, business, the arts 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. An alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award; or

(B) At least three of the following forms of documentation:

(1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

(2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;

(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;

(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;

(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or

(6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or

If these criteria do not readily apply to the foreign national’s occupation, comparable evidence may be submitted.

The O-1 nonimmigrant visa has an immigrant visa counterpart in the EB-1A extraordinary ability visa. The requirements are almost identical, although there are some differences, especially in the standards for the alien in the field of the arts. For the O-1, extraordinary ability in the field of arts means distinction, which is a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts. This is easier to prove than the EB-1A sustained acclaim and top echelon requirements.