NPZ Immigration Law Blog

Last year, at about this time, the USCIS announced that it has received 172,500 H-1B petitions for the fiscal year 2015 which began on October 1st, 2014. The H-1B lottery (also referred as "random selection process ") is likely to be conducted again this year and, in a few weeks, the USCIS will begin to send out H-1B receipt notices.

With uncertainty looming large as to who may or may not "win the lottery" or who may or may not cross the 'threshold' hurdle of H-1B visas, it is time that H-1B visa hopefuls (and their prospective H-1B employers) start to explore other nonimmigrant work visa options to allow them to work and live in the United States on a temporary basis.

This article is timely in nature and it seeks to capture and present some of the possible nonimmigrant work visa options that may be available to prospective H-1B visa beneficiaries who do not "win the H-1B lottery" this fiscal year and who do not get counted toward the 2016 Fiscal Year H-1B cap.

There are certain categories of cap-exempt H-1B visas. One such category is for foreign nationals having (or hoping to have) an employment offer from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization.

To be classified as cap-exempt, it not mandatory that 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.

To illustrate, consider the case of an Information Technology (IT) company having a contract with a U.S university for hiring and placing IT consultants for developing/customizing university software. Assuming that IT consultants hired by the consulting company will primarily work developing/customizing university' software and that the work will benefit the university in reaching one of its stated primary or essential goals; such employees may be treated as H-1B cap-exempt even though they will not be employed directly by the university.

A thorough review of the Memorandum promulgated by the USCIS that deals with cap exempt H-1B opportunities reflects a great deal of flexibility. Furthermore, a thorough analysis needs to be undertaken to ensure that the employer is or is not cap-exempt. On several occasions, over the past several years, immigration attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group have been extremely successful in obtaining cap-exempt H-1B visas for their clients.

CONSIDER OTHER PROFESSIONAL AND SPECIALTY OCCUPATION WORK VISACLASSIFICATIONS: TN, H-1B1 AND E-3 VISAS.

There are three nonimmigrant visa categories quite similar to H-1B visas that are designated for temporary professional workers from specific countries. These visas are based upon specific trade agreements that foreign nations have signed with the United States.

The 'H-1B1' visa program is designed specifically for the nationals of Chile and Singapore. 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 TN classification.

The regulations specify various categories of professions as well as the minimum qualifications for each profession that are covered by Appendix 1603.D.1 to Annex 1603 of North American Free Trade Agreement (NAFTA). In addition, 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".

In simple terms, while a foreign national employed in valid H-1B status can pursue employed-based immigrant visa (commonly referred as employed-based "Green Card"), foreign nationals employed on H-1B1, TN or E-3 lack this advantage. However, foreign nationals employed in these categories can pursue their employment-based Green Card by changing their status to another nonimmigrant visa category such as H-1B, L-1, etc., which recognizes dual intent.

The H-1B1, TN and E-3 are not classifications for everyone. They are specific to certain geographic areas in the world. Nevertheless, the immigration lawyers at the NPZ Law Group continue to find that individuals have immigrated to Australia and/or Canada (or other countries) and obtained their Citizenship there. If this is the case then this may open the door to a foreign national to live and work in the United States using another work visa. As they say, we should aim to leave "no stone unturned".

CONSIDER ANOTHER H-1B WORKAROUND: THE E-1 TREATY-TRADER AND THE E-2TREATY INVESTOR VISAS.

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 treat 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). Nationals of a foreign country having FTA may qualify for both an E-1 and E-2 visa, while 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, 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.

There may be alternate visa options available to foreign graduates of U.S. universities. If not selected for H-1B cap, F-1 students in Science, Technology, Engineering, and Mathematics (STEM) fields may be able to apply for a special 17-month extension. To get the extension, the student should be employed by an employer which has duly enrolled in the E-Verify Program, and should have received an initial grant of post-completion OPT related to such a degree.

Regulations require that STEM subject extensions must be in the major or dual-major of the student's most recent degree received. The extension of the OPT period for STEM degree holders gives U.S. employers two chances to recruit these highly desirable graduates through the H-1B process, as the extensions oftentimes may be long enough to allow for H-1B petitions to be submitted in two successive fiscal years (two H-1B cycles).

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. While enrolling in a bachelor's degree program may be a good idea to buy time in the United States with the hope of making it to the H-1B cap next fiscal year, the option of enrolling in a master's degree program should be exercised with caution.

Before enrolling in a master's degree program, a student should double check whether the U.S. University qualifies as an "institution of higher education" as defined by section 101(a) of the Higher Education Act of 1965 because not every master's degree from a U.S. educational institution will qualify an individual for the H-1B master's cap. For example, some private academic institutions are "for profit" organizations. As such, holding a master's degree from such academic institutions would not qualify the foreign national for the H-1B master's cap.

ANOTHER H-1B WORKAROUND: THE L-1A AND L-1B VISASD FOR INTRACOMPANYTRANSFEREES OF MULTINATIONAL COMPANIES.

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 management, professional, and specialized knowledge skills to the United States. Thus, even within the L category, important distinctions are drawn between the two types of L visas, the L-1A for executives and managers, and the L-1B for employees with specialized knowledge.

L-1A executives direct the management of an organization or a major component or function of an organization. Similarly, L-1A managers have the primary duty of directing an organization, or area of an organization, and supervision or control of the work of others, or management of an essential function at a senior level in the organization's hierarchy. Managers and executives need not supervise subordinates. Regulations allow for "functional management". To qualify for an L-1B visa, the employee should have the specialized knowledge of the company, its product and its application in international markets, or have an advanced level of knowledge of processes and procedures of the company. With the recent promulgation of a Memorandum from the USCIS following President Obama's announcement in November, 2014, it is our hope that we will not have some more objective criteria for the use of the L-1B specialized knowledge intracompany transfer visa.

The use of the L-1 is often referred to strategically as a "transfer out". The idea behind the "transfer out" is that the prospective L-1 candidate is transferred outside the U.S. to work for the subsidiary, affiliate or branch office of the qualifying organization in the U.S. After spending 365 days (one year) outside the U.S. the individual can be brought back to the U.S. in L visa status. The advantage to the use of the "transfer out" strategy is also that if the individual is serving as an executive or manager outside the U.S. and they return as an executive or manager to the U.S. as an L-1A then they can immediately apply for the green card in E1-3, multinational manger/executive category. This is a pre-certified employment-based green card category and still one of the fastest ways to get the green card in the U.S.

There are two types of O-1 visas. Like the L-1 visas, O-1 visas are not subject an annual cap. The O-1 visa category is primarily divided into two categories: O-1A and O-1B. 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.

It is important to know 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. Further, the term "arts" includes not only the principal creators and performers, but also essential personnel such as directors, set designers, choreographers, orchestrators, coaches, arrangers, costume designers, producers, make-up artists, stage technicians and animal trainers.

On the basis of the foregoing, it is safe to conclude that before packing-up bags and leaving the U.S. or giving up on the hopes of living and working in the United States, prospective H-1B visa beneficiaries should carefully explore alternative work visa options that may be available to them in the United States. One may qualify for a cap-exempt H-1B visa if she/he has an offer of employment from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization. Even employment with a third-party employer may qualify an individual for cap-exempt H-1B provided the beneficiary will perform the majority of work at the qualifying institutions and, the work will benefit the primary or essential purpose of the qualifying institution.

Also, it continues to be prudent for the national of a foreign country to check on the type of trade agreement his/her country has in effect with the United States as this may qualify the individual for an H-1B1, TN, E-1, E-2 or an E-3 nonimmigrant classifications. Additionally, employees of companies with offices both in the United States and offshore should explore the option of L-1 intracompany transfer visa.

Moreover, individuals with the "extraordinary ability" in the fields of science, art, education, business or athletics may qualify for an O-1A visa while an O-1B may be appropriate for a foreign national with "extraordinary achievement" in motion picture or TV production. Last but not the least, F-1 STEM students be sure to speak to their International Student Officers (ISO) about obtaining an endorsement on their I-20 Form for the 17-month extension in order to be able to try to get into the next H-1B cycle.

We want to reiterate and re-emphasize that students choosing to enroll in a master's degree program, with the hope of having a better chance of making it to the H-1B cap next year, should 'carefully choose their master's degree program since not all master's degree programs qualify an individual for the master's degree H-1B cap of additional 20,000 visas.