IMMIGRATION ISSUES: The Alternatives to the Elusive H-1B

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

March Madness is just around the corner. For business immigration attorneys, March Madness does not include the Sweet Sixteen or Final Four, but the furious month dedicated to preparing and assembling cap-subject H-1B petitions for the inevitable lottery on April 1^st. Since 2013, employers have submitted petitions on April 1^st that total almost twice the number of available H-1B visas, which has resulted in a lottery. No longer is an early-bird employer guaranteed consideration for one of the 65,000 visas available annually or the 20,000 exceptions for beneficiaries who earned an Advanced Degree in the United States. Petitions received April 1^st could be “on the bubble” for one to two months while an employer holds his breath hoping for a “receipt” and not a rejected petition. So what is an employer supposed to do when an H-1B is harder to obtain than court-side tickets at the Championship Game? Well, it depends.

An entrepreneurial beneficiary could consider an E-1 Treaty Trader or E-2 Treaty Investor. If the majority of the owners of the potential employer are foreign nationals of countries that have trade and/or investor treaties with the United States, then the beneficiary could qualify as an Essential Worker or Manager/Executive on an E-1 or E-2 visa. The beneficiary could also consider investing and managing her own company in the United States on an E visa as a principal treaty trader or investor. As a bona fide enterprise, the beneficiary could offer services or products to the potential employer as well as other potential clientele.

Is the US Entity affiliated with a foreign entity? If so, an L-1 visa could be an option. If the US Entity has been established and maintained a relationship with the foreign entity for one year or more than the beneficiary could be eligible for an individual L-1. Depending on the beneficiary’s proffered position, then the employer could petition for either an L-1A Managerial/Executive Capacity or L-1B Specialized Knowledge. Although, one bit of caution, the L-1B may be even more difficult than winning the H-1B lottery to obtain due to the present political climate surrounding the meaning of “specialized knowledge.” If a US entity does not exist, but the beneficiary has worked for a foreign entity for one year or more in the last three years and the foreign entity has an interest in establishing a US affiliate office, then the beneficiary could qualify for an L-1A or L-1B New Office status.

On occasion the beneficiary may be recognized as one of the best individuals in her field of endeavor. The beneficiary does not have to be a Nobel Peace Prize winner or recipient of an Academy Award, but if the beneficiary has been recognized nationally or internationally for her work in her field of occupation, she may qualify for O-1 Status as an Alien of Extraordinary Ability.

Is the beneficiary looking for on-the-job training? Is the employer a primary or secondary education school that is offering a temporary teaching position? Then the beneficiary could qualify for a J-1 Exchange Visitor Status as a trainee or teacher. The J-1 Exchange Visitor program is heavily regulated and restricted. Employers cannot assign productive work to trainees and trainees must intend to return to their home country to share their new skill within the foreign labor market. Teachers may also qualify to teach in a primary or secondary school in the United States in J-1 status, assuming the teacher is proficient in English, has at least three years of experience and the foreign equivalent of a teaching license.

Is the proffered job recognized as a seasonal, peakload, or one-time need for the Employer? Then an H-2B non-agricultural visa may apply. An H-2B worker could work up to ten months in a position recognized as seasonal or peakload annually. An example of one-time need would include workers needed to clean up a community or administer aid to habitants after a natural disaster. One-time need could be extended to an employer’s need to hire a foreign national to train US Workers in a skill set not found in the United States, assuming the foreign national herself will not engage in productive work.

Is the beneficiary from Canada, eh? Or Mexico? The proffered position may qualify under one of the categories of TN Visa defined pursuant to the North American Free Trade Agreement (NAFTA) as a shortage occupation.

What about a “Green Card”? An employer may sponsor a beneficiary for permanent residence at anytime during the hiring or employment process. A beneficiary need not be working for the sponsoring employer or even in the United States when the employer begins the process. Depending on the qualifications of the beneficiary or requirements for the position, the process may include two or three steps and a beneficiary could obtain her permanent residence in as little as four-six months. Yes – that is right – a beneficiary could obtain a green card through employment faster than he could obtain an H-1B visa. How’s that for a Cinderella Story?

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