Anyone in my generation will remember Campbell’s Alphabet Soup. By today’s standards it was probably not very good, nor good for you with all the sodium in it. But all the letters were supposedly in there, and we ate them all anyway.
In my world, many immigration practitioners focus only on one letter, the “H”, and more specifically, the H-1B, because it can be an incredibly useful nonimmigrant visa category for employers and their (prospective) foreign national employees alike. Alas, however, it’s not always available, as I’ve written about before, and so as we head into the H-1B filing season over the next couple of months, I think it’s useful to think about and explore other options so U.S. employers and foreign nationals who wish to work (or invest) in the United States are aware of all their potential opportunities.
With the start of the H-1B nonimmigrant visa filing soon upon us, once again immigration practitioners around the country will be having difficult conversations with their clients who wish to hire foreign nationals into what are called “speciality occupation” positions.[1] As some of you will recall, U.S. Citizenship and Immigration Services (“USCIS”) uses a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. That’s right, a “lottery” system.
Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption. The process by which USCIS selects petitions is now through an initial “registration” process, where employers pay USCIS $10.00 to register their company and the foreign national who they wish to sponsor, and then USCIS uses a “lottery” system to determine which employers will then have the privilege of filing an H-1B petition with USCIS for that specialty occupation worker.
[1] The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field. Typically, a foreign worker with an H-1B visa is admitted to the United States for a period of up to three years, and his or her visa may be extended for a maximum of six years. (There are some exceptions to this.)
Right after I register my clients for the lottery, I contact them and tell them, among other things, “keep your fingers crossed.” It’s not often that a lawyer counsels his or her clients to keep their fingers crossed, but that’s exactly what I do.
Does anyone else find that to be ridiculous besides me?
So, with that, I then have to counsel my clients (or prospective clients) to consider other options. What follows, and over the next few months, is my attempt to educate some of you as to alternatives to the H-1B program.
First, the H-1B visa could still actually be an option. That is, some employers are eligible to file cap-exempt H-1B nonimmigrant petitions if they are an institution of higher education, a non-profit entity which is “related to” or “affiliated with” an institution of higher education, a non-profit research organization, or a government research organization.[2]
There also several country-specific visa options, such as TN Professionals pursuant to the U.S. -Mexico-Canada Free Trade Agreement (“USMCA”), formerly known as the North American Free Trade Agreement (“NAFTA”), the E-3 Specialty Occupation Visa, which is reserved for Australian nationals, and the H-1B1, which is a treaty-based visa category for citizens of Chile and Singapore who will also come to the United States to work in a specialty occupation, all of these somewhat similar to the H-1B.
Other options include the E-1/E-2 treaty trader or investor visa, which has been established for nationals of countries that have treaties of commerce and navigation with the United States. Treaty nationals enter the United States solely to carry on substantial trade (in services or technology) between their countries and the United States, or to develop and direct operations of an enterprise in which the foreign national beneficiary has invested or is in the process of investing substantial capital.
Some clients have offices outside the U.S. In those situations, an L-1 intracompany transferee visa may be an option. Let me give an example of creative lawyering. Some employers hire foreign nationals who are present in the U.S. on F-1 student visas. Upon graduating, these individuals are generally eligible to start working pursuant to what is called Optional Practical Training (“OPT”) for one year or, in some cases, for up to three years. If the employer tries registering for that individual in the H-1B lottery and is not successful, then an employer with an office outside the U.S. may have the option of off-shoring its employee to its facility abroad. By doing this, the foreign national can work abroad, accrue one-year of employment abroad for L-1 nonimmigrant visa purposes and, if she is employed in an executive/managerial, or specialized knowledge capacity, thereafter enter the U.S. as an L-1 intracompany transferee. The work performed abroad can also be that of a “functional manager” where by the foreign national manages an essential function for the employer.[3]
The are other potential options too, some of which are short-term solutions which may be useful in limited circumstances (e.g., a B-1 in lieu of an H-1B, a J-1 exchange visitor trainee or intern, or an H-3 trainee). Another option could be an O-1 visa, which visa is reserved for foreign nationals who have extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry.
Over the next few months, I will explore some of these options in more detail. Often times if employers or foreign nationals are willing to think creatively, or take a longer view of a process that may involve multiple steps, a solution can come into a view and goals can be achieved.
Tags: H-1B Specialty Occupation Visa, TN Visa, E-1 / E-2 Treaty Trader / Investor Visa, L-1 Intracompany Transferee Visa, O-1 Alien of Extraordinary Ability Visa, F-1 / OPT / STEM,
[2] There are other details that make this “exception” an attractive possibility for some employers.
[3] Generally, an individual can qualify for an L-1A nonimmigrant visa if he or she was continuously employed abroad in an executive, managerial, or specialized knowledge capacity for one of the last three years in a parent, branch, affiliate, or subsidiary of the U.S. entity at the time the petition is filed. For purposes of the “specialized knowledge” prong, the job abroad (or in the United States) needs to be one that requires specialized knowledge of the company’s product and its application in international markets, or an advanced level of knowledge of processes and procedures of the company.
the company’s product and its application in international markets, or an advanced level of knowledge of processes and procedures of the company.