The fiscal year (FY) 2022 H-1B initial registration selection process is completed, and U.S. Citizenship and Immigration Services received enough registrations to reach the FY 2022 H-1B numerical allocation (H-1B cap), including the advanced degree exemption (master’s cap). All of those selected have been notified that they can file a petition.
For those unable to secure a winning number in the H-1B lottery this year, alternatives may exist. It pays to think realistically but creatively, and to plan ahead.
For example, avenues for F-1 students may include maximizing optional practical training (OPT). OPT provides up to 12 months to work on a related field and does not require a job offer. An F-1 student could also return to school and seek on-campus employment or curricular practical training (CPT), which provides temporary work authorization for up to 12 months. CPT requires a job offer and enrollment in an internship class.
Other options might include a spousal visa (J-2, H-4, L-2, E-2) for those who are married; obtaining a cap-exempt H-1B visa at a university, then a concurrent H-1B visa; or obtaining an L, E, J, O, or TN visa, depending on your qualifications.
Below is a non-exhaustive overview of nonimmigrant options to the H-1B visa. See also a recent Miller Mayer webinar on this topic at https://millermayer.com/2021/webinar-alternatives-to-h1b-in-2021/
Staying in F-1 Student Status
An F-1 student may wish to consider returning to campus and enrolling in a new degree program in a science, technology, engineering, or math (STEM) field of study, with an on-campus or CPT training option. If enrolled in a non-degree program, no OPT is available. If enrolled in a degree program at a higher level, OPT may be available.
L-1 Visa: Intracompany Transferees
An L-1 visa allows “intracompany transfers” of managers, executives, and employees with specialized knowledge. Employees must have served in a qualifying capacity for one year within the last three years for an affiliate, subsidiary, parent, or joint venture of the petitioning U.S. employer.
For an L-1, the position abroad and in the United States must be one of the following:
- Executive—Directs the management of the organization or major component or function. The executive establishes goals and has wide latitude and discretion, receiving only general supervision.
- Manager—Manages the organization, a department, function, or component. Supervises supervisors, managers, professionals (bachelor’s level), or an essential function. The manager must be able to hire and fire any direct reports.
- Specialized knowledge employee—Has knowledge of a company process, product, or procedure that is “special” (unique to the organization) or “advanced” (beyond what is typical for other employees in the company).
Documentation. The petitioning employer and the employer abroad must have a qualifying equity relationship (e.g., parent/subsidiary, affiliate, branch, or joint venture). The relationship must be documented (e.g., stock certificates, ledgers, membership agreements, tax returns).
There are a few special cases: a new office L-1, for employers in the United States that began doing business less than a year before filing the petition (requires additional documentation, e.g., proof of physical premises, ability to pay); and a blanket L-1, for frequent users of the L program, which allows for consular adjudications.
Application process. The L-1 application process includes filing a Form I-129 and supplement, in duplicate (with an I-539 if applicable). Canadians can file at the border. The employer includes a support letter with evidence of qualifying employment capacity for one year abroad; qualifying capacity in the United States; a qualifying relationship between the employer abroad and the U.S. employer; and new office documentation if applicable. After approval, if in the United States, status is changed to L. If outside the United States, a DS-160 and consular processing is required.
Validity. There are two types of L-1 visa: L-1A (managers and executives), which has a seven-year maximum (3+2+2), and L-1B (specialized knowledge employees), which has a five-year maximum (3+2).
E-2 Visa: Treaty Investors
The E-2 visa allows nationals of certain countries to purchase or establish a business in the United States. Qualifying foreign countries have a bilateral investment treaty or equivalent with the United States. A “national” is defined under the treaty country’s laws and is usually a citizen of the treaty country. Additional residency requirements may apply under the treaty. A foreign-owned company (public or private) can qualify as an E-2 company.
E-2 visas may also be issued to “essential employees” of the U.S. business, provided the employees share the same nationality as the E-2 treaty investor, as well as to employees serving in a managerial or executive capacity for the company. An essential employee of an E-2 investor may also qualify for an E-2 visa if they have specific qualifications and skills that make them essential to the operation of the business, are the same nationality as the investor, and intend to leave once status ends. An immigration officer will determine eligibility.
Applicants must have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide business in the United States:
- The investment must involve placing the investor’s lawfully obtained funds at risk with the goal of generating a profit.
- The amount of invested capital considered substantial is relative to the size of the business. The amount must be substantial in relation to the total cost of purchasing/creating the business. Lower cost = higher investment.
- The business cannot be marginal. It must have the capacity to generate more than just enough income to support the investor/family.
- The existing or proposed business must be real, active, and operating.
- The applicant must own at least 50 percent of the business, and have control; be qualified to lead, direct, or develop the U.S. business; intend to leave the United States upon expiration of the E-2 visa; and use the investor’s own funds invested in a company or treaty country national’s funds over which the investor has control.
Documentation required to show the purchase of an existing business includes a purchase agreement and any other contractual agreements necessary to effect the purchase, and the source of funds. To show a new business started in the United States, documentation may include a license; leases for space and equipment; menus; marketing brochures; bank accounts; job descriptions and salary terms; comparables from similar companies; the prior year’s financial statements and tax records if a purchased company; and the investor’s source of funds documents, gift agreements, and earnings records.
Application process. If abroad, the E-2 visa applicant must submit a DS-160 along with all supporting documentation, schedule an interview at a U.S. consulate, and pay consular fees (currently $205 per person plus a country-specific issuance fee). If inside the United States, the E-2 visa applicant must apply for an E-2 change of status on Form I-129 and the E Supplement to USCIS. USCIS-approved E’s must repeat the consular procedure to reenter the United States from abroad.
Validity. If approved, an E-2 visa is valid for an initial period of two to five years. An E-2 visa can be renewed indefinitely. An E-2 period of stay in the United States can be extended in two-year terms by submitting Form I-129 and the E Supplement to USCIS. E-2 visa holders may be admitted for up to two years following the date of U.S. entry, even when the visa expires earlier.
E-3 Visa: Australian Professionals
The E-3 visa for Australians provides work authorization (as authorized by the I-94 and the visa), with no limit on extensions in three-year intervals. E-3 Australians must work for an employer on a labor condition application performing duties listed in the initial submission to the consulate. They must be paid the prevailing wage, and their spouses are allowed to work also.
Trade NAFTA (TN) Visa: Mexicans and Canadians
A professional with a TN visa can work in the United States as authorized by the I-94 for the employer specified on the application, in three-year intervals with no limit for most occupations. The visa is for Mexicans and Canadians only. The employer must be in a designated occupation, and the applicant must have the qualifications for that occupation. Self-employment is prohibited. Compensation is flexible. Spouses cannot receive work authorization on the TN visa.
For advice in specific situations, contact your Miller Mayer attorney.