On April 7, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. USCIS will now use a computer-generated process, also known as the lottery (technically referred to as a “Random Selection Process”), to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.
With the uncertainty of getting randomly selected in the H-1B lottery, it is time that H-1B visa hopefuls (and their prospective H-1B employers) should start exploring other nonimmigrant work visa options to allow them to work and live in the United States on a temporary basis.
This article endeavors to discuss some of the possible nonimmigrant work visa options that may be available to prospective H-1B visa beneficiaries who may not get selected in the H-1B visa lottery this fiscal year.
Sections 214(g)(5)(A) and (B) of the Immigration and Nationality Act (INA) exempt a foreign national from the H-1B cap if the alien is “employed (or has received an offer of employment) at” an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization(hereinafter a “qualifying institution”).
Commonly, qualifying institutions can petition on behalf of current or prospective H-1B employees and claim this exemption. In certain instances, petitioners that are not themselves a qualifying institution also claim this exemption because the alien beneficiary will perform all or a portion of the job duties “at” a qualifying institution. Such petitioners are referred to as “third party petitioners.” A third party petitioner is one who petitions on behalf of an H-1B worker who will work “at” a qualifying institution, but where the alien is or will be employed by the third party petitioner, not the qualifying institution.
Thus, to be classified as cap-exempt, it not mandatory that a prospective H-1B employee should be employed by the institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. A prospective H-1B employee, employed by any employer, who will perform the majority of his/her work at the qualifying institutions, could qualify for the cap-exempt H-1B visa provided the work performed should “predominantly further” the “normal, primary, or essential purpose” of the qualifying institution.
L-1 nonimmigrant visa status may be accorded to an alien who, within three (3) years preceding his application for admission into the United States, was employed abroad continuously for one year by a parent, branch, affiliate, or subsidiary of the U.S. petitioning company.
Thus, employees employed by companies with an offshore presence can explore the possibility of using the L-1 nonimmigrant visa option. The L-1 visa program was designed to facilitate the temporary transfer of foreign nationals with executive, managerial, and specialized knowledge skills to the United States. Spherically, there are two types of L-1 nonimmigrant visa: (1) L-1A for executives and managers; and (2) L-1B for employees with specialized knowledge. The L-1A classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. This sub-category of L-1A is referred to as “New Company L-1A visa.”
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. Like the L-1 visas, O-1 visas are not subject an annual cap.
There are, thus, two types of O-1 visas. O-1A is for foreign nationals having “extraordinary ability” in the field of the arts, sciences, education, business or athletics. If in motion picture or TV production or an artist, the person may qualify for O-1B visa provided she/he has demonstrated a record of “extraordinary achievement.” Sometimes, for artists, all that is required is a showing of “distinction”. Thus, there are different standards under the O-1 visa. Note that O-1 visas are not limited to the above-mentioned categories. USCIS interprets the statute to encompass “any field of endeavor” including craftsmen and lecturers.
There are three nonimmigrant visa categories which are very similar to the H-1B visas designed primarily for temporary professional workers from specific countries. These visas are based upon specific trade agreements that foreign nations have signed with the United States.
Specifically, the ‘H-1B1′ visa program is designed specifically for the Nationals of Chile and Singapore. The H1B1 category was created by the Free Trade Agreements signed with Chile and Singapore in 2003. Up to 6,800 visas (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore) are set aside from the H-1B cap of 65,000 during each fiscal year for the H-1B1 program.
Additionally, the Canadian and Mexican temporary professional workers may explore the potential option of obtaining TN classification. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.
Further, nationals of the Commonwealth of Australia may qualify for E-3 temporary work visas. Like the H-1B1, E-3 visas are subject to an annual cap of 10,500 per Fiscal Year.
Occupationally, H-1B1, TN and E-3 mirror the H-1B visa in that the foreign worker must be employed in a specialty occupation (defined loosely as “professional”). While both the H-1B1 and E-3 require Labor Condition Applications (LCA) from the Department of Labor (DOL), the TN visa does not require the employer to obtain an LCA. However, unlike the H-1B visa, which is a “dual intent” visa, none of the above-mentioned categories are “dual intent”.
A foreign national may qualify for an E visa depending upon what country he/she is from. There are certain countries in the world that have a specific type of treaty or agreement with the U.S. The most common of these agreements or treaties is referred to as a Bilateral Investment Treaty (BIT), a Free Trade Agreement (FTA), or a Treaty of Friendship, Commerce and Navigation (FCN) with the United States.
There are two types of E visas: Treaty Trader visa (E-1) and Treaty Investor visa (E-2). Though nationals of a foreign country having FTA with the United States may qualify for both an E-1 and E-2 visa, BIT allows only for an E-2 visa.
For an E-1 visa, a foreign national entering the United States is required to carry on substantial trade that is international in scope, and principally between U.S. and the foreign country. The E-2 visa, on the other hand, requires the foreign national to develop and direct the operations of an enterprise in which the foreign national has invested, or is actively in the process of investing, a substantial amount of capital.
The enterprise must be a bona fide enterprise. Further, a “key employee”, including the executives and supervisors, or persons whose services are “essential to the efficient operation of the enterprise” may qualify for an E-1/E-2 visa depending upon the bilateral agreement between the foreign country and the United States.
If not selected for H-1B cap, F-1 students in Science, Technology, Engineering, and Mathematics (STEM) fields, who have elected to pursue 12 months of OPT in the United States, can extend the OPT period by 24 months (STEM OPT extension). To obtain the extension, the student should be employed by an employer who is duly enrolled in the E-Verify Program, and should have received an initial grant of post-completion OPT related to such a degree.
Students who do not hold STEM degrees may choose the option of going back to school. For instance, a student who has completed a bachelor’s degree from a U.S. institution may exercise the option of enrolling in another bachelor’s or master’s degree program. The option of enrolling in a master’s degree program should be exercised with caution because holding a master’s degree from a “for profit” institution of higher education will not qualify the foreign national for the H-1B master’s cap.
Based on the foregoing discussion, it is safe to conclude that before departing the United States or giving-up on the hopes of staying and working in the United States, prospective H-1B visa beneficiaries should carefully explore each and every alternative work visa option that may be available to them.