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The H-1B Cap Has Been Met, Now What? 9 Alternative Options to Consider


Monday, October 2, 2017

On April 7, 2017, USCIS announced that it has reached the congressionally mandated 65,000 visa H-1B cap for the 2018 fiscal year (“bachelor’s cap”), as well as a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption (“master’s cap”).
 
If your petition was not selected, we have prepared this brief overview of some alternative options to the H-1B visa for you and/or your employer to consider. As with any immigration strategy, you should speak with an attorney to evaluate your specific situation and the facts of your case before making any plans, but we hope you will find this useful. As always, feel free to contact us if you wish to explore your options further. 
 
F-1 Visa:
 
Pursue a graduate or higher degree. If possible, stay in F-1 student status and obtain a higher degree. If you complete a higher degree level, and not a parallel degree, upon graduation from your degree program, you will receive a new OPT period of 12-months.
 
STEM OPT Extension: 24-Month Extension of OPT (total of 36 months).
 
This option applies to STEM degree graduates only (Science, Technology, Engineering, Mathematics). Make sure you check the ICE list of designated STEM degree programs to make sure your degree qualifies. To qualify, the employer must be registered with E-Verify; the training position must directly relate to degree major; and the applicant must file while 12-month OPT is still valid. You should check with your International Student Office (ISO) for specific filing procedures and timelines; and check the DHS website for additional guidance and filing information.

E-3 Visa (Australian nationals only).
 
The E-3 visa category applies to Australian nationals only, as well as their spouses and children.  Note, however, that spouses and children of E-3 visa holders do not need to be Australian citizens. To qualify in the E-3 visa category, the beneficiary must have earned a bachelor’s degree or equivalent in a specific specialty (e.g., Computer Engineering, Mathematics, Biology, etc.), and the position for which the beneficiary’s services are sought must ordinarily require at least a bachelor’s degree in specialized fields.  Under USCIS regulations, a “specialty occupation” is an occupation that requires theoretical and practical application of a body of specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
 
NAFTA / TN (Canadian and Mexican nationals only):  
 
The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada, and Mexico. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. To qualify in the TN visa category, the applicant must hold either Canadian or Mexican citizenship.  The beneficiary must also meet the specific education (e.g., a Bachelor’s degree), experience, and licensing requirements set forth in Appendix 1603.D.1 of the NAFTA.  Additionally, the beneficiary must engage in prearranged business activities for a U.S. or foreign employer with offices in the U.S. (i.e., self-employment is not permitted under this category).  Furthermore, one must show that the beneficiary’s entry is temporary, which means the work assignment in the U.S. will end at a predictable time and that he or she will depart the United States upon completion of the assignment. 
 
H-1B1 (Chile/Singapore):
 
The H-1B1 visa category applies to Singaporean or Chilean nationals only, as well as their spouses and children.  Note, however, that spouses and children of H-1B1 visa holders do not need to be Singaporean or Chilean citizens.  To qualify in the H-1B1 visa category, the beneficiary must have earned a bachelor’s degree or equivalent in a specific specialty (e.g., Computer Engineering, Mathematics, Biology, etc.), and the position for which the beneficiary’s services are sought must ordinarily require at least a bachelor’s degree in specialized fields.  While the total number of standard H-1B visas that may be granted each year is 65,000, out of that number, 5,400 visas are set aside annually for H-1B1 visas for Singaporean nationals and 1,400 visas are set aside for Chilean nationals.  As such, Singaporeans and Chileans may usually avail of the H-1B1 classification even if the H-1B cap is reached.
 
E-1 Treaty Trader:
 
The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the U.S. solely to engage in international trade on his or her own behalf.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification. To qualify in the E-1 category, you must demonstrate that:
  • Requisite treaty exists;
  • You or the business possess the nationality of the treaty country;
  • You have invested or are actively in the process of investing into a company located in the U.S.;
  • The company is a real and operating commercial enterprise;
  • The company carries on substantial trade of items such as goods, services, international banking, insurance, transportation, tourism, technology and its transfer, some news-gathering activities;
  • The company’s principal trade (i.e., over 50% of the total volume of international trade) is between the United States and the treaty country; and
  • You intend to depart the United States when the E-1 status terminates.
In addition to the above requirements, each consular post has its own filing procedures and requirements so consular procedures should be followed closely. E-1 visas can be granted for a period of up to two (2) years, and can be extended indefinitely, as long as you continue to carry on trade with the treaty country.
 
E-2 Treaty Investor:
 
The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification. To qualify in the E-2 category, you must demonstrate that:
  • Requisite treaty exists
  • You or the business possess the nationality of the treaty country;
  • You have invested or are actively in the process of investing into a company located in the United States;
  • The company is a real and operating commercial enterprise;
  • Your investment is substantial;
  • Your investment is more than a marginal one solely for earning a living;
  • You are in a position to “develop and direct” the enterprise; and
  • You intend to depart the United States when the E-2 status terminates. 
In addition to the above requirements, each consular post has its own filing procedures and requirements so consular procedures should be followed closely. E-2 visas can be granted for a period of up to five (5) years, and can be extended indefinitely, as long as you continue to operate a viable business in the U.S.  
 
I Visa:
 
This visa category is for representatives of foreign media, including reporters, journalists, film crew, and editors, amongst others. To qualify in the I visa category, you must:
  • Represent a foreign information media outlet (e.g., press, radio, film, print or other foreign information media);
  • Intend to engage in this profession in the United States; and
  • Maintain a home office in a foreign country. 
You must also be able to demonstrate that your activities are essential to the functions of your foreign media employer.  To be eligible for the media visa, your activity in the U.S. must be associated with the news gathering process, reporting on actual current events.
 
O-1 Visa for Aliens of Extraordinary Ability:
 
The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics (O-1A), or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements (O-1B).
 
To qualify in the O-1A category, which is likely the more appropriate category for past H-1B applicants, you must demonstrate “sustained national or international acclaim and recognition for achievements” and that you have risen to the top of your field.  Sustained acclaim can be demonstrated through either evidence of a one-time achievement (a major, internationally recognized award such as the Nobel Prize), or through evidence of at least three (3) of the following regulatory criteria:
  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
  • Membership in associations in the field that require outstanding achievements of their members, as judged by recognized national or international experts.
  • Published material in professional or major trade publications or major media about you, relating to your work in the field.
  • Participation on a panel, or individually, as a judge of the work of others in the same or allied field.
  • Original scientific or scholarly contributions of major significance.
  • Authorship of scholarly articles in the field, in professional journals, or other major media.
  • Evidence that you have been employed in a critical or essential capacity for organizations or establishments that have a distinguished reputation.
  • Evidence that you have either commanded a high salary or will command a high salary or other remuneration for services.
As part of the process, the law also mandates that a peer group advisory opinion from an appropriate consulting entity, union or management group be submitted.  If no such unions exist in your field, you may obtain a letter from a professional organization, relevant to your field, confirming your sustained national or international acclaim. 
 
Conclusion:
 
As you can see, there are many alternative options to the H-1B specialty occupation visa. If you were one of the many applicants that were not selected in this year’s H-1B lottery, you should explore the above options with your employer and immigration attorney. We are here to help you come up with a viable solution to achieve your professional goals.  
 
If you have any specific questions regarding your individual situation, please do not hesitate to contact the attorney with whom you have been working or for more general inquiries, you may submit your questions to: info@sostrinimmigration.com.

21700 Oxnard Street, Suite 860, Woodland Hills, CA 91367 T 818.435.3500 F 818.435.3535 info@sostrinimmigration.com