By Attorneys Gregory J. Boult & Nancy E. Miller
The popularity of the H-1B visa has reached historic levels with approximately three petitions being filed for the 2017 fiscal year for every available visa. The result has been the implementation of a lottery system by USCIS which is designed to randomly select which petitions will be processed and which will be summarily rejected. For many professionals, the H-1B visa serves as a viable means to live and work in the United States. And for those fortunate enough to secure an H-1B visa, its corresponding status often leads to lawful permanent residence if the petitioning employer files an immigrant visa petition on behalf of its H-1B employee. However, with the dramatic rise in the number of H-1B petitions being filed each year, and the fact that the majority of these petitions will be rejected due to the immovable H-1B Cap, other avenues of pursuing status in the United States must be explored by employers and employees alike. Fortunately, for many of those individuals who are unable to pursue or secure H-1B status, options may still remain.
Two potential alternatives to H-1B status are E-1 and E-2 visas. Controlled by treaties of commerce between the United States and select foreign governments, individuals from certain countries can apply for nonimmigrant visas which permit them to live and work in the United States. Individuals can apply for an E-1 visa if their company is engaged in ‘substantial trade’ with the United States. Substantial trade is defined as at least 50% of all international trade. Alternatively, E-2 visas can be sought by individuals who actively invest in an ongoing business concern in the United States. The specific facts of each case dictate what is reasonable and necessary but larger investments are typically deemed more viable. While E-1 and E-2 visas are available to individual traders and investors, these visas are equally available to employees of a qualifying trading or investing business entity as well.
For some, an L visa serves as an excellent alternative to H-1B status. L visas may be available to certain individuals employed abroad who will relocate to the United States to work for a branch, affiliate, subsidiary, or the parent organization of their overseas employer. In order to qualify, the petitioned employee must relocate to the United States in the capacity of an executive or manger (L-1A), or an individual with specialized knowledge (L-1B).
Another alternative to H-1B status is specifically available to citizens of Canada and Mexico – the TN visa. The TN visa is very similar to an H-1B visa, yet it is distinguishable in two significant ways. First, it is the product of the North American Free Trade Agreement. Therefore, it is only available to citizens of Canada and Mexico. Second, while being available to professionals – just like the H-1B visa – the TN visa category more broadly defines who is a professional and thus is more inclusive than the H-1B category. As a result, some individuals who would not be deemed qualified for H-1B status could qualify for a TN visa.
While E, L, and TN visas can serve as a suitable alternative to H-1B status, none of these statuses lead directly to lawful permanent residence. However, an individual can pursue an immigrant visa through an employment-based immigrant visa petition filed by a current or prospective employer. While more appealing to many than nonimmigrant status, the process of securing an employment-based immigrant visa can take years. The exact amount of time an individual must wait to obtain an immigrant visa through an employer is directly related to the proposed position of employment, and the education and relevant work experience of the employee. While the long waiting periods to secure an employment-based immigrant visa often render this option unappealing or impractical, not all individuals are subject to a protracted wait. As such, for some, pursuing an immigrant visa can prove an inviting alternative to H-1B status.
With the odds being stacked against anyone seeking H-1B status in the United States, alternative options should be thoroughly explored by those seriously seeking to live and work in the United States. While everyone’s circumstances are unique, H-1B status may not be the only option available. In fact, in some instances, it may not be the best option for either the petitioning employer or the petitioned, prospective employee. Examining all options prior to filing an H-1B petition is therefore in the best interests of the petitioning employer and the prospective employee – not just to ensure a proper fit between intent and form, but also to ensure that a viable alternative can be planned should the petitioning employer learn that its H-1B filing has been rejected due to the now notorious H-1B Cap.