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.
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