Alternatives to the H-1B Visa

USCIS has conducted this year’s H-1B Visa lottery, in which it selected 65,000 H-1B applications, plus an additional 20,000 applications for individuals with the U.S. earned Master’s degrees, from over 236,000 applications filed. For those who do not possess a U.S. Master’s degree, there was a mere 27% chance to be selected in the lottery!

What now for those whose applications were rejected in the lottery? Below are some examples of other temporary work visas. Unlike the H-1B, the below visas are not subject to a quota.

L-1 Visa for Intracompany Transferees

The L-1 Visa is for intra-company transferees. There are three principal requirements: (1) the applicant worked for 1 year in the last 3 in an executive, managerial, or specialized knowledge capacity for a company abroad; (2) the applicant will be working in a managerial, executive, or specialized knowledge capacity in the United States; and (3) the company abroad and the company in the United States have a “qualifying corporate relationship,” such as an affiliate or parent-subsidiary relationship demonstrated by common ownership.

If the applicant is coming to the United States to open up a new office, then the company can file an L-1 New Office Petition. A “new office” is a company that has been doing regular, systematic, and continuous business in the United States for less than one year.

The E-2 Treaty Investor Visa

Certain nationals of “treaty countries” are eligible for E-2 Treaty Investor visas. A treaty country has entered into a treaty of commerce with the United States. The list of treaty countries can be found at: https://travel.state.gov/content/visas/en/fees/treaty.html.

The principal requirements for an E-2 investor are: (1) the applicant has invested or is actively in the process of investing a substantial amount of his or her funds in a U.S. enterprise (“E-2 company”); (2) the investment will provide more than just a marginal living for the investor and his or her family, i.e. the E-2 company will make a “significant economic contribution” to the United States; (3) the E-2 company is at least 50% owned by an individual from the treaty country; and (4) the investor seeks to enter the United States to develop and direct the E-2 company.

The first question most people ask is, “what does ‘substantial’ mean?”. The government follows a “proportionality principle”. This means that whether the investment is substantial depends on the amount of the investor’s commitment.

The O-1 Visa for Individuals with Extraordinary Ability

The O-1 visa is for individuals with extraordinary ability in the sciences, arts, education, business, or athletics. Or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have achieved national or international recognition. The petitioner will have to meet certain evidentiary criteria depending on the field of expertise. Especially when the expertise in science, education, business, or athletics, the O-1 must present evidence of at least 3 of 10 criteria.

This includes receipt of nationally or internationally recognized awards; membership in associations that demand outstanding achievement; published material about the individual in major professional/trade publications or major media; original contributions of major significance, authorship of scholarly articles in professional journals or major media; and employment in a critical or essential capacity for organizations with distinguished reputations, among others.

Those applying in the arts or motion picture/television industry must satisfy separate evidentiary criteria. The petitioner of an O-1 visa may be a U.S. company or an individual who is acting as the O-1 individual’s agent for purposes of the O-1 petition.

Conclusion

The H-1B Visa is great. The rest may want to investigate other options, including the visas identified above. For a thorough review of immigration options, we recommended consulting with an immigration attorney.