What If We Don’t Get an H-1B Visa Number? Alternatives to the H-1B for Employers and Employees, Part I

For employers and employees who have started preparing their H-1B petitions for filing on April 1st, it is not too early to start thinking of alternatives in case your petition is not selected in the H-1B lottery. This article is just a short overviews of possible options, and does not provide all the details of the requirements for each visa option.

Employers may file an H-1B petition on behalf of an employee, and at the same time may pursue filing petitions for other nonimmigrant visa categories, for example, an L-1A, L-1B or O-1A on behalf of that same employee. Or, go for the gusto and file straight for the geen card. The alternatives available depend upon many factors.

One of the complaints of commenters to the new H-1B rule, was that the new lottery system favors presumably young and inexperienced students over much more experienced foreign workers. If a company wants to sponsor a very high-level foreign worker, the O-1A or O-1B may be an option. The O-1 is for foreign workers who have extraordinary ability in their field, be it science, education, business, athletics, art or the motion picture and television industries or even “any field of endeavor”.

Just how “extraordinary” does the foreign worker have to be to meet the standard for the O-1? This depends upon the field. For the O-1A classification, if the foreign worker is to be employed in the fields of science, education, business, or athletics, the standard is extremely high, and it would have to proven that the individual is at the top of his or her field. The proof must include either receipt of a major international award, such as a Nobel prize, or by submitting at least three of six types of evidence, such as the following: nationally or internationally recognized prizes or awards; membership in an exclusive professional association that requires outstanding achievements to be a member; articles about the beneficiary in professional or major trade publications or media; the beneficiary has judged the work of others in the field; the beneficiary’s important original scientific, scholarly or business contributions; the beneficiary has written important scholarly articles; employment in a critical role for a distinguished organization; or a high salary.

However, for those who will be employed in the arts, the O-1B classification requires only that the artist be “prominent” in the field, and is a lower standard. The arts is defined very broadly, including but not limited to the following: fine arts; visual arts; culinary arts; performing arts; and architecture.  The proof must include at least three of a list of six types of evidence, such as performed in a lead or starring role for distinguished productions, or distinguished organizations, critical reviews and articles in the media, a record of major commercial or critically claimed successes, recognition of achievements from experts in the field or a high salary.

Second, if the company in the US has a subsidiary, or offices abroad which already employ the foreign worker, the employer may be able to file an L-1B (specialized knowledge worker) or an L-1A (manager or executive) petition. Whether this is an option depends upon the relationship between the overseas company and the US company sponsor. The US company and the overseas company must be a parent/subsidiary, branch office of the same company or a joint venture. This is just a general description, the specific requirements are more detailed, and should the ownership or control of either company change, then the foreign worker may no longer be eligible for an L visa. According to the statute as written, the employee must have worked for the overseas company for at least one year out of the last three years, but in practice USCIS is extremely exacting and many more years of experience may be necessary in order to convince USCIS that the foreign worker really qualifies for an L visa. For a specialized knowledge worker petition, the employer must show that the employee has “special knowledge of the company product and its application in international markets” or “an advanced level of knowledge of processes and procedures of the company.” In order to qualify for L-1A status, the employer must show that the employee will be primarily performing managerial or executive duties, and not engaged in day-to-day operations that can be handled by less senior staff. This standard is especially difficult for a small company with few employees to meet.

Another option may be the E-1 treaty trader or the E-2 treaty investor. There must be a treaty providing for E visas between the U.S. and the foreign country of which the employer and employee are citizens. If the foreign country does not have any treaty with the U.S., it is not possible to file for an E-1 treaty trader or E-2 treaty investor. For example, India does not have such a treaty with the U.S. so its citizens cannot apply for either E-2 or E-1 status, while Pakistan does have a treaty, so Pakistanis may apply for either E-1 treaty trader or E-2 treaty investor. There is a long list of countries with which the US has bilateral investment treaties, for example, Argentina’s, Colombia’s and Italy’s provide for both E-1 and E-2 visas. Some countries have treaties which provide for only one or the other, for example, Albania’s and Egypt’s provide for only E-2 treaty investor. Here is the list of countries with which the US has treaties for E visas: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

The sponsoring company must have the nationality of the treaty country. In a small company, for example, the nationality would be determined by the individual owners of the company. For a publicly-traded company, if the company shares are listed exclusively on a particular stock exchange, that is a factor in determining the citizenship of the company, but the company would still have to provide additional evidence.

For E-1 treaty traders, the company must prove that the beneficiary is being admitted “solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which he is a national” INA 101(a)(15)(E)(i). The beneficiary must be coming to the U.S. for an executive or supervisory position, or possess skills essential to the firm’s operations in the U.S.

For E-2 treaty investors, the company must prove that the E-2 investor is coming to the U.S. “solely to develop and direct the operations of an enterprise in which he ahs invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital” INA 101(a)(15)(E)(ii). In addition to the investor who provides the capital for and runs the business, an E-2 company may sponsor other E-2 employees for executive or supervisory positions, or where the employee has specialized skills essential to the business, if US workers are not available to do the job.

The above options are all good ones, as the sponsoring employer may continue to employ the foreign worker for long periods of time, and there are no limits on visa numbers. For the O-1A, O-1B, E-1 and E-2 visas, there is no limit on extensions. For L-1A there is a limit of seven years, while for L-1B there is a limit of five years.

As mentioned above, this is only a short overview. Should you need detailed advice, you will need to retain a competent immigration attorney.

In Part II, we will discuss possible options for temporary visas which provide only for short periods of employment, or for a status that does not allow employment, but allows for training or certain types of business activities.

Copyright 2019 © Heidi J. Meyers all rights reserved.

2019 Waivers of Removal, Deportation and Exclusion Orders are Still Available

In 2019, DHS is still accepting applications for waivers of old removal, deportation and exclusion orders for people who never departed the U.S., are still here and are eligible for their green card but for their old deportation order. Applicants must show all the positive factors in their favor, such as U.S. or permanent resident spouse, parents or children, work history, medical issues of any family members, the applicant’s important role in taking care of the family, military service of any family members, bad conditions in the native country, etc. The positive factors must outweigh the negative factors including having an outstanding deportation order and never having left the U.S.

So, for example, if an applicant has an immediate family member who is a U.S. citizen, and obtains an approved relative petition, the applicant may then apply to waive the old deportation order. Once he or she receives an approval of the I-212 waiver, the applicant is then eligible to file an I-601A provisional unlawful presence waiver based on a U.S. citizen or permanent resident parent or spouse who would suffer extreme hardship should they not be allowed to live in the U.S. Those who have only US citizen children will not be able to qualify.

With both the approved I-212 waiver and the approved I-601A waiver in hand, the individual is then ready to go ahead with immigrant visa processing, get an interview date at the US Consulate in his or her home country, and proceed abroad for the interview for an immigrant visa, and then return to the U.S. as a lawful permanent resident.

Copyright 2019 © Heidi J. Meyers all rights reserved

2019 New H-1B Rule Favors F-1 Students

The final H-1B regulation published January 2019, prioritizes F-1 students and others who have completed a U.S. masters degree. This aspect of the rule will be in effect as of April 1, 2019, for this year’s H-1B season. However, the registration requirement will not be implemented until later.

Employers may file an H-1 petition up to six months prior to the start date of the sponsored employee. Demand has consistently been higher than the H-1B visa numbers available. H-1B visa numbers for new beneficiaries (new employees who have not had an H-1B visa number within the past six years)  are limited to 65,000 for beneficiaries with a bachelors degree or equivalent, plus an additional 20,000 visa numbers for those with US masters or higher degrees. That means there are only 85,000 total H-1B visa numbers for cap-subject cases each fiscal year. Because the new fiscal year starts on October 1st, employers must file any new, cap-subject H-1B petitions within the first five business days of April. Thus, for this year, employers have between Monday April 1st , 2019 to Friday April 5th, 2019 to file for a start date of October 1st, 2019. Filing means that the petition must be received by those dates.

USCIS then runs a lottery to determine which H-1B petitions will receive a visa number. Those petitions that do not receive a visa number are returned to the employers. Receiving a visa number does not mean that the petition will be approved. It just means that USCIS will take the filing fees, review the petition and adjudicate it. Thus, those receiving visa numbers may still have their H-1B petitions denied.

In the final rule, DHS changes the procedure by which H-1B cap-subject petitions are selected in the lottery in order to favor F-1 students and others who hold a masters or higher degree from a U.S. college or university. Thus, employers who already employ an F-1 student (assuming he or she has a US advanced degree) on OPT have a higher chance of obtaining an H-1B visa number for their employee, than an employer sponsoring an employee abroad whose education was also abroad.  The final rule reverses the selection process that USCIS used in the past. Now, USCIS will randomly select H-1B petitions for the regular cap first (the 65,000 visa numbers that may go to any beneficiary with at least a bachelor’s degree or equivalent, including foreign degrees, and also combining education and experience). After filling up the 65,000 H-1B visa numbers, USCIS will then select from among the remaining pool of petitions the additional 20,000 H-1B petitions that are reserved for beneficiaries with a US masters degree or higher (say, F-1 students with a PhD, MD or JD from a US university). USCIS estimates that this new procedure will result in an increase of 16% in the proportion of H-1B visa holders with an advanced US degree.

DHS believes that this rule is merit-based, and is consistent with the policy of “Buy American and Hire American” (BAHA). The rule does not make it easier to hire foreign nationals. Because the rule is expected to result in a greater number of beneficiaries with a US masters or higher degree, it is in line with the executive order’s goal to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries”.

DHS will also implement a new registration system for employers, however, this is suspended for this FY2020 H-1B cap season. DHS needs to perform user testing of the new online system. DHS anticipates starting the registration system in time for the FY2021 H-1B cap season. All employers must file a registration for each potential employee, and then wait to see if USCIS selects it before filing an H-1B petition. If USCIS does not pick the employer’s registration, the employer is not allowed to file an H-1B petition on behalf of that beneficiary.

Each fiscal year, USCIS will announce the start date of the registration period on its web site at least 30 days prior to the start of the registration period. The registration period will be for a minimum of 14 calendar days.  The registration period will begin at least 14 days before the first day of petition filing and last at least 14 days. So, at least for two weeks. USCIS will then determine the end of the registration period, depending upon how many registrations it receives. USCIS may continue the registration period past two weeks, or reopen the registration period for an additional period of time.

Each registration must include the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number. SEVIS information is not required. USCIS may decide later on to include additional information required for registration. USCIS will check the system for duplicate registrations. Establishing eligibility is not required to file a registration. The registration period is not intended to replace the adjudication process or to assess whether the beneficiary is eligible for the position.

The required information is intended only to identify the beneficiary and limit potential fraud and abuse of the system. DHS is considering ways to allow employers to correct typos in their registrations. Employers will be able to edit a registration until it is submitted. Employers may also delete a registration and re-submit it prior to the close of the registration period.

DHS regulations already forbid the filing of multiple H-1B cap subject petitions by related corporate entities for the same beneficiary, unless there is a legitimate business need.

USCIS will then select sufficient registrations towards the H-1B cap, eliminate duplicate registrations, identify the employer and proposed employee, and to match registrations with subsequently filed H-1B petitions.

In sum, employers and foreign professional may proceed as usual in preparing and filing H-1B petitions this fiscal year. Since the registration process is postponed, the only procedure changing is USCIS’s manner of choosing which H-1B cap petitions receive visa numbers, so that a greater proportion will go to beneficiaries who are F-1 students with advanced degrees.

Copyright 2019 © Heidi J. Meyers, all rights reserved.