Alternatives to the H1B Specialty Occupation Visa

H1B season is in full swing, as US immigration lawyers across the global prepare to file their client’s petitions during the first week of April. It’s always an exciting time for law practices handling H1B visas for clients given the time sensitive petitions and uncertainty of being selected in the lottery. It can also be an extremely stressful period for employers and prospective employees for the same reasons.

The H1B visa is a temporary non-immigrant visa allowing a US employer to sponsor a foreign national for employment in the United States. The basic requirements dictate that 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, and 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 in 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 from the visa cap. Additionally, certain non-profit companies and higher education positions are also exempt. The visa’s small petition window and selection cap can make it an unattractive option for employers. This is especially true for employers looking to hire a foreign national quickly.

US Citizenship and Immigration Services (USCIS) receives far more petitions each year than visas available. This necessarily results in the random lottery. For fiscal year 2017, the government received over 225,000 petitions – bringing a beneficiary’s chance for being selected in 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, this practice is no longer allowed, and USCIS will reject all petitions filed by a company if they determine a duplicate petition was filed. What larger companies will do to increase their chances of having their H1B visas selected is to inflate their needs. The company would extend offers to more candidates than they need, in anticipation of approximately 75% of the petitions being denied. While this practice is not against the rules, it certainly harms the chances of other beneficiaries being selected in the lottery.

What are the alternatives to the H1B visa?

If one’s petition is not selected in 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 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 with 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 and should be coming to the US to work in a specialty occupation. Additionally, the employee must work on behalf of a foreign company and be paid by a foreign source (i.e. not paid directly from the US company).

The B1 in lieu of H visa is a good 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 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 a fast alternative to the H1B visa, one should not attempt to continually renew the visa, as this 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 trying to circumvent obtaining a proper H1B visa.

Another alternative should a beneficiary not be selected for the H1B visa lottery is sourcing either an E2 Treaty Investor visa or E2 Employee visa. In the first instance, if a beneficiary is needed in the United States to work in the IT field, they could effectively create their own IT consultancy firm via the E2 Treaty Investor visa and offer their services as in independent contractor to the employer who wanted to originally hire them. Not only would the beneficiary be able to avoid the H1B lottery, they would not bound by the H1B length of stay rules – allowing them to remain in the US for as long as their E2 business is up and running.

The E2 visa, however, is not available to all foreign nationals. Unlike the H1B visa, the E2 visa is based on treaties the US has in place with specific countries. For example, nationals of India, Russia, and 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 also required to make an investment in his or her business to qualify for the visa. While there is no specific dollar amount noted in the relevant rules and procedures, the investment should be significant. A strong investment amount depends on the type of business the applicant is looking to start-up and should be discussed in consultation with a qualified immigration attorney.

The second E2 visa option is the E2 Employee visa. As in 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 with 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 a national of Italy and has been offered a position with 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 and is willing to spend the money to make the investment, register the company as an E2 company, and hire Giovanni as an E2 employee. Unfortunately, the E2 Employee visa would not work as Giovanni and the company do not share the same nationality (i.e. Giovanni is Italian and the company is 100% Croatian owned). Please see below for another example:

Olivia is a national of Denmark, and like Giovanni, her H1B petition was not selected in the lottery by the US company wishing to hire her. The company is 49% owned by American nationals and 51% owned by Danish nationals. Like Giovanni’s prospective employer, Olivia’s company wishes to register as an E2 company and hire her in E2 employee status. This would be allowed, as the majority of the company is Danish owned and shares the same treaty nationality with Olivia.

The above visa options are just a few alternatives should a foreign national not be selected in the H1B lottery. For additional visa categories and strategies, please contact our office today.