Alternatives to the H1B Specialty Occupation Visa
- June 6, 2017
- Posted by: marlenedubois
- Category: CPR Training
H1B season is usually in full swing, as US immigration lawyers across the global prepare to file their client’s petitions during the first week of April. of which’s always an exciting time for law practices handling H1B visas for clients given the time sensitive petitions in addition to also uncertainty of being selected from the lottery. of which can also be an extremely stressful period for employers in addition to also prospective employees for the same reasons.
The H1B visa is usually a temporary non-immigrant visa allowing a US employer to sponsor a foreign national for employment from the United States. The basic requirements dictate of which the potential foreign employee hold a bachelor’s degree or the US equivalent (work experience can be substituted for a degree in certain circumstances), the employee will be working in a specialty occupation, in addition to also the employer will pay the employee at least the prevailing wage for the position (as determined by the location of the job).
There are 65,000 visas available each year for a start date on 1 October. Immigration attorneys must file their client’s petitions during the first week of April or they will not have a chance of being selected from the random lottery. The first 20,000 petitions received by the government for beneficiaries who hold a US master’s degree or higher are exempt by the visa cap. Additionally, certain non-profit companies in addition to also higher education positions are also exempt. The visa’s smaller petition window in addition to also selection cap can make of which an unattractive option for employers. of which is usually especially true for employers looking to hire a foreign national quickly.
US Citizenship in addition to also Immigration Services (USCIS) receives far more petitions each year than visas available. of which necessarily results from the random lottery. For fiscal year 2017, the government received over 225,000 petitions – bringing a beneficiary’s chance for being selected from the visa lottery to approximately 25%. Unfortunately, these are not great odds, especially if the US company requires the foreign national’s unique qualifications or skills.
Throughout the years, employers have tried to develop ‘hacks’ for giving their beneficiary a better chance of being selected – including filing duplicate petitions for the same beneficiary. Fortunately, of which practice is usually no longer allowed, in addition to also USCIS will reject all petitions filed by a company if they determine a duplicate petition was filed. What larger companies will do to boost their chances of having their H1B visas selected is usually to inflate their needs. The company could extend offers to more candidates than they need, in anticipation of approximately 75% of the petitions being denied. While of which practice is usually not against the rules, of which certainly harms the chances of some other beneficiaries being selected from the lottery.
What are the alternatives to the H1B visa?
If one’s petition is usually not selected from the H1B visa lottery, or an employer requires a foreign national employee outside of H1B season, there are still alternatives to bring them to the United States. One of the most underused alternatives is usually the Special Business Concession visa, also known as the B1 in lieu of H visa.
As its name implies, the B1 in lieu of H visa allows its holder to enter the US that has a B1 Business visa in place of a proper H1B visa. Specifically, the visa allows a foreign national to enter the United States to perform productive work for a temporary period of time. Like the H1B visa, the foreign national should have earned at least the equivalent of a US bachelor’s degree in addition to also should be coming to the US to work in a specialty occupation. Additionally, the employee must work on behalf of a foreign company in addition to also be paid by a foreign source (i.e. not paid directly by the US company).
The B1 in lieu of H visa is usually a Great bridge visa to hold a beneficiary over until the next H1B lottery when another petition can be submitted on their behalf. The B1 in lieu of H visa is usually typically issued for a period of one (1) year. Its holder can then enter the US for a maximum period of six (months), which can be extended to complete the full year.
While the B1 in lieu of H visa is usually a fast alternative to the H1B visa, one should not attempt to continually renew the visa, as of which could result in a denial. Should a B1 in lieu of H applicant attempt to renew the visa multiple times, the embassy charged with adjudication may assume the applicant is usually trying to circumvent obtaining a proper H1B visa.
Another alternative should a beneficiary not be selected for the H1B visa lottery is usually sourcing either an E2 Treaty Investor visa or E2 Employee visa. from the first instance, if a beneficiary is usually needed from the United States to work from the of which field, they could effectively create their own of which consultancy firm via the E2 Treaty Investor visa in addition to also offer their services as in independent contractor to the employer who wanted to originally hire them. Not only could the beneficiary be able to avoid the H1B lottery, they could not bound by the H1B length of stay rules – allowing them to remain from the US for as long as their E2 business is usually up in addition to also running.
The E2 visa, however, is usually not available to all foreign nationals. Unlike the H1B visa, the E2 visa is usually based on treaties the US has in place with specific countries. For example, nationals of India, Russia, in addition to also China are not eligible for the E2 visa. For a complete list of eligible countries, please visit the US Department of State website.
Along with being a national of a treaty country, the E2 applicant is usually also required to make an investment in his or her business to qualify for the visa. While there is usually no specific dollar amount noted from the relevant rules in addition to also procedures, the investment should be significant. A strong investment amount depends on the type of business the applicant is usually looking to start-up in addition to also should be discussed in consultation that has a qualified immigration attorney.
The second E2 visa option is usually the E2 Employee visa. As from the case of the E2 Treaty Investor visa, the E2 Employee visa requires citizenship of a treaty country. While the employee visa option does not require an investment on behalf of the employee, the US company must already be registered that has a US embassy. Additionally, the US company must hold the same treaty nationality as any prospective E2 employee. Please see the below example:
Giovanni is usually a national of Italy in addition to also has been offered a position that has a US company who filed an H1B petition on his behalf. Unfortunately, Giovanni’s petition was not selected. The US company, 100% owned by Croatian nationals, has heard of the E2 visa in addition to also is usually willing to spend the money to make the investment, register the company as an E2 company, in addition to also hire Giovanni as an E2 employee. Unfortunately, the E2 Employee visa could not work as Giovanni in addition to also the company do not share the same nationality (i.e. Giovanni is usually Italian in addition to also the company is usually 100% Croatian owned). Please see below for another example:
Olivia is usually a national of Denmark, in addition to also like Giovanni, her H1B petition was not selected from the lottery by the US company wishing to hire her. The company is usually 49% owned by American nationals in addition to also 51% owned by Danish nationals. Like Giovanni’s prospective employer, Olivia’s company wishes to register as an E2 company in addition to also hire her in E2 employee status. of which could be allowed, as the majority of the company is usually Danish owned in addition to also shares the same treaty nationality with Olivia.
The above visa options are just a few alternatives should a foreign national not be selected from the H1B lottery. For additional visa categories in addition to also strategies, please contact our office today.