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Alternatives to the H1-B Visa: Presenting Strategies to Clients Seeking Employment-Based Visas

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Alternatives to the H1-B Visa: Presenting Strategies to Clients Seeking Employment-Based Visas

No visa attracts more interest, frustration, and questions than the H-1B, which is subject to a strict numerical cap and much scrutiny. Immigration attorneys must be able to present clients with alternative options, while addressing a range of questions. Which nonimmigrant (temporary) visas most closely resemble the H-1B in terms of eligibility requirements, as well as benefits and restrictions? What other options might facilitate obtaining an immigrant visa (green card)? This course will provide a survey of nonimmigrant visa categories that typically apply to these circumstances, while considering issues such as timeframes, eligibility requirements, and how different categories might fit or conflict with each other––with the goal of providing the view with as much information as they need to help a client feel informed about and comfortable with the options presented.

Transcript

- Hello, and welcome to the Quimbee continuing legal education course, Alternatives to the H-IB Visa, in which we will present strategies to assist you in consulting with clients who are seeking employment based visas. My name is Matthew Blaisdell. I am a solo attorney in Brooklyn, New York with a general immigration practice. And if you have any questions, concerns, comments regarding today's presentation, please feel free to reach out to me here. I want to note that we are not going to be covering every single category of non-immigrant employment based visa, but only those that are most likely to appeal as substitutes for the H-1B for your client and their potential employer. These might include the E-3 visa and the H-1B1, which are highly similar to the H-1B, mostly dependent on the client's country of nationality or birth. We're gonna look at the J-1 visa for exchange visitors, which includes trainees and interns, but also students and many other categories, the O-1 visa for individuals of extraordinary ability, the L-1 for intra-company transferees, the E-visa E-1 for treaty traders and E-2 for investors and entrepreneurs, the B-1 for business visas, and the TN visa, which is for NAFTA professionals. Now, again, we're not covering all non-immigrant visa. So for instance, we won't be touching the I visa for international media, those visas for diplomatic employees, for students, for those who are victims and cooperating with law enforcement, et cetera, just the ones most likely to apply in our circumstances. And in case the client is interested and qualified, we're going to present a few green card options as well. Those are immigrant visas. We're not gonna cover them in detail here during this presentation, but the slides are included if you wanted to take more of a dive into the various green card based employment categories. In so doing, we are going to review the advantages, disadvantages, requirements, and other factors needed to compare the H-1B to alternative visas. We will assess the other non-immigrant visa categories that are most appropriate to different scenarios. We will consider how such categories may affect strategies for pursuit of an immigrant visa, again, the green card, and hopefully gain insight into how to present various risk benefit scenarios to clients when deciding between alternatives. So for example, is there a cap and a lottery. By cap, I mean, is there a limited number of visas available to which our subject to a lottery due to the mismatch between supply and demand. Is the visa considered single or dual intent? Meaning can you go for a green card basically at the same time as you're going for a temporary visa. How much length is granted to the initial visa and to what extent are extensions permitted, and how long are those extensions permitted for. How many processes and procedures are involved with each different visa. And where are they processed? Can they be done here in the United States? Must they go through the consulate? What are the pros and cons of doing it in one place or another? What are the restrictions on the number and type of employers that a foreign national may work for? What restrictions might there be on the employment type and salary? What are some of the burdens on employers? To what extent are they subject to varying levels of scrutiny and evidentiary requirements. These are some of the factors you'll want to consider as we go through each-1 of these visa categories. And hopefully by the end of this presentation, you'll be able to apply this knowledge and conduct the analysis here on the agenda. And with all that said, let's just jump straight into the H-1B so you'll have an idea of what we're comparing the rest of these visas against. This is one of the very first ones that your clients will be seeking and there's various reasons for that. But what is the H-1B visa? First and foremost, it is for those engaged in a specialty occupation, which is defined as the theoretical and practical application of a body of highly specialized knowledge and the 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 US. So basically they have a bachelor's and are they coming to the US to perform a job that requires the same degree in a similar field as the degree. There is some amount of flexibility here in terms of the amount of experience one needs and the extent to which a degree is required. You can, for example, use a three for one rule, which is to substitute three years of professional level experience for one year of academic training, if it is in the specialty occupation. So again, everything kind of traces back to something that can be defined as a specialty occupation, which loops back to the degree required for it. And to the extent that one has to demonstrate that they have this, they can substitute some level of experience for that level of training. Now, the reason representing a CLA called H-1B alternatives is because there's not that many of these available. There is a tremendous amount of demand for these compared to the very limited supply, the 65,000 available per fiscal year. Now there are four classifications of individuals who are exempt from this cap, and those include J-1 physicians, we'll talk a little bit about the J-1 visa, but not specifically on the category physicians. You'll kind of know that when you see it. The beneficiaries of employment offers at institutions of higher education or related or affiliated non-profit entities, et cetera, et cetera, basically, people who work for research institutions. Exemption for people who possess a US earned master's degree or higher, so there is a separate cap for those with masters, we call that the master's cap. So there's still a limit on those, but it is a smaller limit than the one imposed on the bachelor's. There's an exemption for those who've already been counted against the cap. So say someone went through this visa lottery, they were picked, they do not have to go through the lottery again, they are not subject to this cap. They can keep renewing. There's an exemption for the spouses and children of H-1B holders that's to be the H-4 category. And there's an exemption for those who already have an H-1B visa and are simply seeking to extend it. So again, if you've already been through the process once, you do not have to go through it second time. And by process, I mean, the H-1B lottery, which is in fact a lottery. So they take the number of petitions that have been filed, or now under the current process, those who have registered and they essentially run a lottery. And those who get picked are able to go forward and apply for an H-1B visa, the 65,000 who are picked through the lottery can go ahead and file a petition with USCIS for an H-1B visa. Now, one of the benefits for an H-1B1, the reasons it's so oversubscribed is it's very flexible in it's length. This is particularly appealing to people who are in a visa backlog. So those people who would like to apply for an employment based green card, but because they are from a country with a very long backlog, say India and China, for example, mostly India, they want the ability to stay and work here until their spot in that line, in that green card line is reached. Therefore it's very much to their advantage to get an employment based visa that they're allowed to continuously renew. So for most people, the initial H-1B is limited to six years, basically two three year grants. Though once the foreign national has spent one year outside of the US, the six year clock restarts. So they could do a full six years, step out for a year, come back, do it all again. Also time spent outside the United States may be added back to the six years. So say for example, somebody got five years of H-1B time, they stepped out for three months, came back. They can still get a full year, not just the nine months. They get the nine months plus they can add back thE-3 years that they were out. So in total, they have six years and three months from start to finish because for thosE-3 extra months, they happen to be outside the United States. So they don't get punished for having to return for say an emergency or something like that. And if a labor conditioned application and/or petition for a lawful permanent resident is filed by the end of the fifth year of the status, they can renew it continuously on a one year basis. So this is what I was talking about with the back log countries, again, mostly China, India, and mostly India. So this keeps them employed, but it can be tougher to change the green card employer. Now, this is all subject to a law people refer to as AC21, it's appropriate for an entirely other training. But the gist of it is if someone starts a green card case, before the end of their fifth year of status, they can keep renewing this H-1B on a year by year status as long as they maintain their place in line for the employment based green card. And if the I-140, the petition for the green card is approved, they can extend that for up to three years at a time, which is a tremendous benefit for those who otherwise would have no basis to stay in the US while they're waiting for their place in the line to be reached for the green card. So here's what the petition must contain. The labor condition application, the LCA, as we say, which takes about a week, and basically just verifies the conditions of employment, the evidence that the foreign national is qualified, and the evidence that the proposed employment constitutes a specialty occupation. Again, specialty occupation is a matter of great debate and scrutiny. We're not gonna dive into that here cause that would be more appropriate for an H-1B specific training. The employer must also certify that all statements are true and correct, that they will abide by the assertions made in the LCA and that they will pay repatriation expenses if the foreign national is fired during the time of the petition. And so the advantages, aside from the flexibility and the ability to stay here for a long time and add time back, et cetera, the big one also is dual intent. So I spoke about people who had green card cases pending and needed a basis to work here in the meantime temporarily, very few visas actually allow for this. Mostly the H-1B the L-1, which we'll discuss, and to a somewhat limited extent, the O-1 visa that's considered quasi dual intent. But the dual intent means I have the intent of both getting the green card and also working here on a temporary visa. So temporary and permanent, I can do both of them at the same time. Very few visas allow for this. Traditionally, the H-1B could also be quickly prepared with a straightforward and attainable standard basically to show that you've got the bachelor's degree and a specialty occupation. Though, in recent years, actually going back a little bit, USCIS has subjected these to a tremendous amount of scrutiny, partly because so many applications are filed. So it's not quite as straightforward as it used to be, but the basic fundamental standard remains pretty straightforward, bachelor's and specialty occupation. And it's also very flexible. So you can port, which means you can take this petition as the foreign national and port it to a new employer, basically change employers under certain circumstances if it's substantially the same type of job. You can also work part-time and you can also work for multiple employers. You can have several H-1Bs going at the same time through different employers. Disadvantages, the cap. Again, not many available. There's probably one third of the number of people who apply in the lottery actually get picked and are allowed to move forward and file an actual application. So one third is not very many. There is the potential of FDNS visits, that's USCIS fraud detection and national security because these visas are subject to a tremendous amount of scrutiny. You could always have FDNS conduct a site visit at the site of employment, never fun for the employer. There are lots of extra government fees. Again, USCIS wants to make this as painful as possible because of the concerns about competition to the US workforce. So they assess at a $500 anti fraud fee and other fees associated with the extent to which the employer, it's a big employer versus smaller employer or an employer who has a certain percentage of their employees present on H-1, B visas, et cetera. They like take on these extra fees for these circumstances. To some extent, it's actually not that flexible in terms of working in multiple locations. So USCIS determines the fee at which the employee must be paid, which depends on the type of job and the geographic area in which the work takes place. So obviously, somebody working in New York city might be expected to receive a higher salary than someone working in a very small town in the middle of the country with a much lower median wage rate for the same job. If you're moving from one to the other, in either direction, you have to amend the LCA, which again stipulates the conditions of employment, which can be kind of a pain. You also must wait for the LCA and/or prevailing wage determination, again, certifying the conditions of employment to get approved before you can actually file. So before you can file, even if you're picked in the lottery, you still have to conduct these preliminary processes with the Department of Labor. There's generally, again, a six year limit though exceptions apply. Without those exceptions however, you are limited to the six years, unless you step out for a year or fit under AC21. Again, subject to great scrutiny. So quite often when you file these, USCIS will issue what's called a request for evidence. We call it an RFE, which can be very, very burdensome. So no matter how detailed your application, every year, they seem to latch onto a different issue and issue RFE on whatever that particular issue is. So, for example, we don't think this job's a specialty occupation, and you have to go back and forth and litigate with USCS that, yes, it is a specialty occupation. And these can add a lot of time and stress to the cases. And lastly, there are current timing considerations due to the cap and the slow processing times. So for instance, the visas are released at the start of the fiscal year and the employment is not authorized until that time. So basically you have to apply, the mechanics of the process work out such that you have to apply by April 1st. However, you cannot start working until October 1st. And even then you can't start working until the petition's been approved. And quite often it hasn't been approved by October 1st. So that induces tremendous amount of uncertainty and stress for both the employer and the employee. That said, the benefits typically far outweigh the disadvantages and hence it's a very sought after category. But again, very difficult to obtain if you're gotta be one of the small percentage that even makes it through the lottery before you can apply. So what are some other categories. We'll start with the ones that most closely resemble the H-1B and we'll start with the E-3, which is basically a special H-1 for Australian nationals. So they define specialty occupation in a pretty similar manner. You must also file an LCA in the E-3 category, and also like the H-1B you must have a specific job offer to come to the US to work in a specialty occupation. You also have to submit your academic credentials and a license, if required, in the state in which the individual works. So these are common to both the H-1B and the E-3. You have to prove that it's the right job in the right location. You have the right credentials for it. And credentialing includes licenses if the job requires it. So if you're working in California, in order to work the job in California, an American would generally be required to have a license. The foreign national would also have to have the same license. Similar to the H-1, you also have to file the LCA and there is a visa for their spouses. So the H-1B that would be an H-4, and for the E-3, the same applies. There are some advantages over the H-1B. There's fewer fees. You get unlimited extensions, and there's actually no petition required. Disadvantages, single intent. Unfortunately, you can't come here and say, yes, I'm going for a green card and also the E-3. You have to basically say, I'm just doing the E-3. However, these-1 year extensions are unlimited and there's always workarounds. They're just somewhat cumbersome and requires some different strategic conversations with your client, if you're trying to get around the single intent issue, if they actually want to get a green card. The differences from the H-1B is that there is a cap of 10,500 visas, as opposed to the H-1B cap of 65,000. So it's a much smaller number, but remember, this is basically just for Australians. So this number is never reached. The spouses are granted the same E-3 status, so they don't get H-4. They just get the same as the principle E-3. The employer does not have to pay the anti fraud or other fees. The visa is issued for the duration of the LCAs. The LCA usually allows for two years instead of three. But again, you can extend this for an unlimited amount of time. And while it is a single intent, there is a somewhat low burden of proof. So you basically just have to provide a statement that, yes, the client to return to Australia at the completion of your stay here, but they don't tend to apply the same amount of scrutiny to the dual intent, single intent issue as they do others. And like I said, there's quite often amount of work around. It just kind of depends on the strategy, how you set it up and how you present yourself. One further difference is that you can apply for this at the US embassy or consulate outside the US. You can basically just skip USCIS, go straight to the embassy, pick up the visa there. So much more straightforward process for Australians. From there, we take a look at the H-1B1. This is for citizens of Chile and Singapore in a specialty occupation. There's four specifically covered occupations here. We have Chilean agricultural managers and physical therapists, and from both countries management consultants and disaster relief and claims adjusters. Like the H-1B, it requires a certified LCA and an offer of employment. They may apply for new employment and/or an extension of state through USCIS. And again is what the H-4 spouses and dependent children are able to be here and work pursuant to those visas. The benefits of this is that the cap of 1,400 for Chile and 5,400 for Singapore is never reached. Again, these are much smaller numbers, but a much smaller base. So only Chilean and Singaporeans applying for these. Similar to the E-3, they can skip USCIS and go straight to the US embassy and extend these visas for an unlimited amount of time. There's no petition required, a lot of fun. They only need to do an LCA every third year, and don't have to pay a lot of the same fees that H-1B visa holders need to. Similar to the E-3, they are single intent, but this one is only permitted a one year admission. So very fundamentally similar to the H-1B, procedurally pretty easy by comparison, but a little bit more limited in terms of the duration and the ability to be very upfront about going for a green card at the same time. Let's now transition to NAFTA professionals. So this is the TN visa, also country specific for Canadian and Mexican nationals who have an offer to work in one of 63 professional occupations that are listed in an appendix to the NAFTA treaty. So the NAFTA treaty has an appendix listing these 63 jobs. If the Canadian or Mexican national has an offer to work in one of these 63 occupations, they may qualify for the TN visa. They do have to, of course, demonstrate that they have the credentialing and education requirements for the specific occupation, need to prove that they are in fact, a national of Canada or Mexico. If they're able to do that, the extensions of the TN may be filed with USCIS, or at a port of entry or a consulate. So there a lot of flexibility in terms of how and where you apply for this visa, which is valid for up to three years. Canadians can file the petition with USCIS, or apply at select ports of entry. So entering into the US at the border or at the airport *uses usually at a land border, they can make the application right there. Mexican nationals, however, do have to apply at a US consulate. Similarly, spouses and children of the TN holder are able to pick up a visa called the TD. So as with the H-1B and E-3, TN and visa holders can bring their spouses and children in. This would be called the TD visa, which is a NAFTA dependent. To expand somewhat on the requirements, aside from citizenship and being in the appropriate occupation, they have to demonstrate that they also, like the H-1, have a bachelor's degree and the applicable professional license. And they can demonstrate all of this by providing a very detailed job description, as well as copies of the appropriate credentialing, their degrees, transcripts, licenses, et cetera. Where experience is required in the occupation, they can bring letters from former employers to demonstrate that they do in fact have that required experience, as well as a resume, information about the company to prove that it is a valid company, that it is an occupation in one of the limited fields in the appendix and their basic immigration nationality documents. Put all that together, and you can make the application right at the port of entry or the US embassy without having to go through USCIS, at least in the initial application. What are the advantages versus an H-1B. While there's no LCA or requirement of prevailing wage, you don't have to go through this whole separate process with the department of labor to verify the conditions of employment. The stay may be indefinitely extended. Of course, this not being dual intent, you do have to demonstrate that you have non-immigrant intent, which basically means that you have to demonstrate that you do intend to step out of the US at the conclusion of your permitted stay in TN status. Canadians may apply at the border, which is great. Mexicans can apply to US embassy and extensions can be filed either there or with USCIS. So again, a lot of flexibility in terms of how you actually obtain this visa. You can change the job site with the same employer without filing an amendment. So remember the H-1B, if you change any of the fundamental conditions of employment, you have to file a new petition, not so here with the TN. And a licensure is only required post entry. So you don't actually have to have the required license before you get in here. Drawbacks, limited to the occupations in the appendix, it's single intent, and of course, limited to Mexicans and Canadians, which is a big drawback for everybody else. They can't get it. So we just discussed a couple of visas that are very similar to the H-1B in a lot of extent, but are country specifics. So now we'll start moving on to some visas that are available to just about everybody. When we talk about the E-visa, there are some limitations there, but for most everybody else, they are eligible for all of these visas without restriction due their nationality. And we're gonna start with the J-1, that's fairly similar in some respects. But instead of being a regular employment based visa, this is for exchange visitors. This is a program administered by the Department of State in which the sponsoring company or entity receives designation from the Department of State enrolls in CVAs. Those who are familiar with student visas know what CVAs is. * The sponsor offers a program in which the exchange visitor, the foreign national, will participate and places the visitor in an appropriate program. And then they issue this thing called the DS-2019. Again, very similar to student visas. Those of you who are familiar with that, this is basically a parallel process. Instead of an I-20, it's a DS-2019. Instead of a DSO, there's an ARO, etcetera, cetera. Not gonna go into detail on what those means. That'd be appropriate for a program on student visas, but we'll just leave a note here, note those similarities and move on to the next slide. While also noting that the amount of time in which somebody can be present in the US in J-1 status depends on the program. So it could be a few months, it could be a few years, whatever they put on the I-94 when they enter is going to be tracking to whatever's on that DS-2019 and not specifically three years, six years, one year, etc. Now, these are four exchange visitor programs that are ministered by the company that registers the Department of State in which kind of programs would these be? Common ones include trainees and interns. So again, that's where it's gonna be most similar to H-1B. However, it's also for students, those in travel work exchange programs. So a lot of people who come to the US and work for summer jobs. Those are quite frequently J-1 exchange visitors. Au pairs, those present in educare, teachers, counselors, professors, research scholars, medical graduates, and physicians, et cetera, et cetera. We're mostly gonna focus on trainees and interns here. It's for those who engage full-time in a prescribed course of study, and they are eligible for some financial support and health insurance. But what are the obligations of the sponsor? What make this kind of fundamentally different from the H-1B The exchange visitor program sponsor must prepare and submit an annual report to the Department of State to maintain their credentialing. They must maintain the legal status and/or accreditation or licensure that they possessed at the time of designation, maintain financial solvency, hire and train sufficient staff and properly select, orient and monitor program participants ensuring that they also have medical insurance. So there's some significant burdens on the J-1 sponsor, somewhat different than those that would be on an employer in a normal employer/employee context. There's also a big restriction for those who might be thinking about going for a green card. Certain categories of J-1 visitors are subject to a two year home residency requirement before they can try to change their status in the US, or adjust their status to lawful permanent resident. So if they wanted to move from J-1 to H-1B or J-1 to F-1 student visa or whatever it is, they can't do that directly in the US without stepping outside the US for two years. They also could not adjust status in the US and go for a green card until they've stepped outta the US for two years. So who's subject to this restriction. Typically these are government funded exchange programs, so programs that are funded directly by either the government of the US or by their country of nationality. Graduate medical education, or training. Someone who came to the US to receive medical training is typically subject to the two year requirement. And those on a specialized knowledge or skills list. So this is there to prevent brain drain, to some extent, the exchange visitors country has deemed a specific field to be of specialized knowledge or skill that is necessary to their country's development. And there is an exchange visitor skills list on the Department of State website, where you can go and find out if the occupation is subject. So this is obviously a red flag for those who are going for a green card. If you can see that they're going for an occupation on this list, it's a big obstacle. However, there is a waiver available for some groups. So this is a 212 waiver, or a waiver of the 212 requirement rather. However, for some categories, it can be quite a challenge. It's a long, difficult process to get and can add significant time and cost to their strategy in obtaining adjustment of status. So you have to be careful in selecting the exchange visitor program and in the appropriate strategy, and let them know about that right up front. If they are in one of these categories, they will need a waiver. Waivers can require a certain amount of time and money and unpredictability. Waivers and certain categories are much easier to get in others. There's various different classifications of people who are eligible for the waiver. It gets pretty complicated. So obviously you want to note this right up front. But how do you know that someone is actually subject? This is noted on the DS-2019 or on the visa. It usually says that they are subject to the two year residency requirement right there up front. And if they're mistakenly designated, sometimes the Department of State makes mistakes. You can argue this. You can apply to the Department of State waiver review division. And again, even if they are properly designated, you can try to get this requirement waived. You can get a statement of no objection from their home country. You can request an interested US federal government agency waive it. Can show threat of persecution in their home country showing of exceptional hardship to a US citizen or lawful permanent resident, spouse, or child, or get the designated state public health department, or it's equivalent in that country provide a waiver for physicians. And both the designation, the restriction and the potential waiver apply to dependents of the J-1, that would be those on a J-2 visa. So getting back to benefits and restrictions, the ARO, the alternate responsible officer, must conduct official communications with the agencies, maintain the 2019 and notify Department of State of change circumstances, if the visitor completed the program early, or if they were terminated from the program, et cetera. However, something that's nice about this and gets around a lot of these burdens is that the exchange visitor program designates blanket petition approval. So this means that the Department of State can get around not having to approve visitors and entry and visa issuance can be obtained simply by presenting a properly executed DS-2019 to the US consulate abroad or at the border with CBP, along with proof of non-immigrant intent, residency abroad and possibly financial information. So all this to say is if the exchange visitor program has gone through this whole song and dance earlier, they can get blanket petition approval, such that anybody who shows up presenting their DS-2019 and non-immigrant stuff can get through via a much simpler process just by presenting this material at the embassy or at a port of entry with CBP. The ARO may grant an extension without asking the US for approval. The extension must be filed 60 days prior to expiration the application filed with the US consulate, Department of State and is not filed with USCIS. And the individual may change status without leaving the US again unless they're subject to the two year residency requirement at 212 . So unless they get the waiver, or if they get the waiver, they may change status without departing the United States. But what about students? Can they work? And the answer is yes. And without going to the weeds, we'll just note that their ability to work is roughly equivalent to those of F-1 student visa holders, those in those employment categories. There are some differences, but if you're consulting somebody who's interested in initially entering the US or changing status to J-1 via one of the visitor programs for students or scholars, they are able to work in these limited circumstances. So to summarize, how is the J-1 similar to the H-1B? The holder can work from multiple employers in limited circumstances. They also have a 30 day grace period following the end of the program, and they can remain in the US to complete the program without the petition being withdrawn or revoked. And as with the H-1, they can also change employers if the former employer agrees to release them. Some of the advantages of the H-1B is the blanket approval. We just noted a super, super streamlined process for those who are able to take advantage of it. They are not subject to the wage condition and related requirements. And employers are subject to fewer penalties, so that's much nicer for the employer. And the qualifications are less specific and subject to discretion. So it's a little more straightforward. If you meet the basic requirements, you should get the visa without too much haggling and back and forth and arguing with USCIS. Disadvantages is that in this case, the petitioner must be a US entity or citizen. They have to demonstrate financial responsibility on an ongoing basis, provide periodic reports and have their applicable licensure or accreditation review. So the employer, in this case, the program has to continue to demonstrate that they do meet all the requirements for an exchange visitor program. It can be harder to change the activities that you're permitted to perform in the US. There is the two year home requirement for many cases, and it's also a single intent visa. So you can't come here and say you're going for the green card at the same time that you're going for a J-1. The next category, O-1 visas for individuals with extraordinary ability in the sciences, education, business, athletics, which we call SEBA, or the arts, or in motion picture television industries. Individuals of are those who have obtained sustained national or international acclaim. Just to provide a little bit of background on what those words mean. This is a level of expertise indicating that the person is one of the small percentage who have risen to the very top of their field of endeavor. This is for those who are artists or entertainers in the television and motion picture industries, they must show a demonstrated record of extraordinary achievement. This visa can be valid for up to three years with unlimited extensions, and also can be extended to support staff who are accompanying the principal to assist with artistic or athletic events or performances and spouses and dependent children are also eligible for the O-3 visa. So support staff is O-2 and dependents are O-3. However, they do not receive employment authorization, the dependents. How do you demonstrate eligibility for this visa. Well, you can do-1 of two things. You can show receipt, or even just nomination of a major internationally recognized award, such as the Nobel prize, that's actually in the regulation. Or you can document that you have at least three outta the following eight criteria. There's what I call lesser rewards for excellence in the field, membership and the associations that require outstanding achievement, published material in major trade publications, or major media, participation on a panel as a judge of the work of others, original contributions to the field that are of major significance, authorship of scholarly articles in professional journals or other major media, employment in a critical or essential capacity for organizations and establishments of a distinguished reputation, or past or proffered high salary or other remuneration. So there's a lot that can be said about all of these, again, appropriate for a separate training specifically on extraordinary ability cases. Pro tip. If you just want like a quick and dirty example of what type of evidence meets these criteria, I might direct you to a little bit of Googling and finding the USCIS RFE templates. So when they issue a request for evidence on these, saying like, you didn't meet the criteria for one or all of these categories, they'll then spell out what types of evidence might satisfy each of these categories. So if you can find these RFE templates, that'll get you some idea as to where to get started in terms of trying to figure out what kind of documentation might demonstrate that the client is eligible for the O-1. What are some advantages? Well, the beneficiary can more easily work at multiple locations. In fact, this is very common, especially for those in film and TV or the arts. They might be working in New York and LA, or maybe touring in Chicago or whatever it is. And they can bounce around as long as they're performing in the occupation. There's no time to wait for the LCA and/or prevailing wage determination. In fact, those things don't apply to this at all. And you can change from the J-1, even with the two year home requirement, and from H-1B where the six years are used. So basically it's a nice, easy visa to transition to for those who are otherwise qualified. There's no wage maintenance requirement or overall limit on the time in the classification. So again, you can be an O-1 status forever, and you don't need to maintain a very specific wage. There's no cap on the numbers, therefore, no lottery. If you qualify, you get it. It's also flexible in the type of petitioner. So the person sponsoring you can be a foreign or domestic employer. It can be an agent which it can be almost anybody. And it can be a self corporation. So it could be, Matthew Blaisdell LLC could sponsor Matthew Blaisdell. That's about as flexible as you can be. It's indefinitely renewable as mentioned, and it provides a logical pathway to an EB-1 visa. So that's a green card category for people of extraordinary ability. So all that's to say, if you've gotten an O-1 or a string of O-1 extensions, you might have built up a very strong case for an EB-1A an easy transition to a green card case. Disadvantages is the extraordinary ability standard is very restrictive. It's not so easy to demonstrate that you are one of the small percentage who has risen to the top of your field. There's a much higher documentary requirement. You really have to kind of go all out to demonstrate that you've met those three criteria, unless you have the big award. And technically it's not dual intent, although it's considered to be quasi dual intent. So what does that mean? It means that the foreign national can pursue the immigrant visa as long as they depart at the time that the O-1 is expired or demonstrate that they intend to depart. So this is kind of similar in some respects to some of the visas we talked about. This is defined in the foreign affairs manual, which refers back to the code of federal regulations. It's just not considered dual intent specifically because it's not in the statute, it's not in the INA, whereas H-1 and L-1 are specifically designated as dual intent in the statute. Here, it's only by policy and memorandum interpreting the statutes and regulations. So how this shakes out is that the foreign national does not have to show that they maintain a residence abroad, unlike everybody else who's subject to a single intent visa. And this stability, this quasi dual intent nature also applies to the dependent, so the spouse and children, but it does not apply to support staff on an O-2 visa. Without going into great detail, we'll leave it at that. But quasi dual intent, not quite dual intent, but it's definitely better than single intent. So we'll jump here right into the L-1 visa, which we've referenced a few times as the only other exclusively dual intent visa. This is often the first one that H-1B visa or H-1B inclined foreign nationals will look to. Well, I might not be eligible for the H-1, or I don't think I'm gonna get it in the lottery. So what's the next-1 I'm looking at. Quite often, they'll look at the L-1 if they're not from Australia, Singapore, or Chile, Canada, Mexico, or of extraordinary ability, usually they'll jump right to the L-1. And that's because the benefits and are pretty similar. There's too much to say about some of these eligibility requirements. What is specialized knowledge for this purpose? But we'll just kind of jog through them. We'll summarize them right here on this slide. Intra-company transferees. What are they? It's the transfer of employees from a foreign entity to a US parent affiliate and or subsidiary country. And the foreign national must also contribute to the affiliate or subsidiary, executive managerial or specialized knowledge skills. So there's two categories of the L-1. There's the L-1A for those who are coming here to work on managerial or executive assignments and they get an initial three years on the first petition and can extend it twice for two years each. They can get a max of seven years. So it's three plus two plus two. If they're here on an L-1B, that means that they have specialized knowledge. They're here to perform a specialized knowledge assignment for an initial period of three years and-1 extension of two years. So it's three plus two totaling five. There is similar to the H-1, a visa for their dependent spouses and children. This is called the L-2, and the spouses get work authorization, and similar to the H-1, they can recapture time outside of the US. So, say an L-1B was here for four years, had to step out for six months to take care of something and they could come back, they could still get that full year starting from the time that they come back. So it could be five and a half years from the time that they started, if there was a six year period which they stepped out in the middle. So the requirements of the transferring, must have obtained their executive managerial or specialized knowledge outside the US. So they can't have met the definition through their experience in the US. They have to have obtained it outside the US first. Their assignment requires the application of this experience or knowledge at the US company. So whatever they obtained outside the US, they have to be coming here to do the same thing. And of course, you have to show a corporate relationship between the foreign and the US entities. In terms of similarities. Again, dual intent, initial grant of three years, which is extendable for a certain period of time. There is also premium processing. So if you're in a big rush to get these approved, you can pay the government $2,500 to get this done quickly. And again, spouses can work. Some advantages is that there's no cap, so no lottery, no limit, anyone who qualifies can apply. There's no wage requirement, which makes it a little easier to craft the position. And the payment can come from either the US subsidiary or from the foreign headquarters. And similar to the O-1, this provides a logical pathway to an immigrant visa. For the O-1, it was the EB-1A, for the L-1, it's the EB-1C for those coming to manage or take over at a new office. So it's pretty limited. It's just for the new office cases, but it's pretty straightforward. If you can get the initial L-1 in this category, and if it's for a new office, you have a nice straightforward path to a green card. Jumping to the E-visa, this E-1 for treaty traders, who are those who are coming to engage in substantial international trade of goods, services, or tech between the treaty country and the US. This includes a treaty with a country from which the applicant is a national regarding activities that constitute trade, which is substantial and principally between the US and the treaty country. The applicant must be an executive or supervisor or otherwise possess essential skills and intend to depart the US in the future. Benefits are that this visa is typically valid for five years. So up to two years per entry, continuously renewable, although you may be expected to demonstrate compliance upon each reentry. So each time you go through the border, through an embassy, you might have to demonstrate that you've been in compliance with your E-1 requirements. And the other nice thing is that the spouse and children are granted admission for a period with the principal. So as long as you're here pursuing to the E-1, they can be here as well. The trade must already be in progress. So this can't be just something that you've negotiated and then get the visa. You've already got to be conducting the trade before you get the visa. And that includes binding contracts for the immediate traceable and identifiable exchange of items. Title must pass between the parties. The activities must support business activity. Can't be here basically just to make bank deposits. And it must be substantial. So sufficient to ensure a continuous flow of international trade items through numerous transactions over time. Now this refers to volume, not monetary value. So it can be lots of small business activities. That's what you're looking for. And it covers a broad scope. So it's not limited to good services, banking, insurance, et cetera, et cetera. It covers a broad scope of activities that are frequent and not necessarily very big. And as noted, you can be a much smaller business. You can actually be a very, very small enterprise and still qualify for this. So again, if you can tick those very narrow boxes, you qualify for an E-1. E-2, somewhat similar, foreign nationals entering the US pursuant to a treaty to develop or direct the operations of an enterprise in which they have invested, or in which they're in process of investing a substantial amount of capital, and that being a bonafide enterprise. So this also requires a treaty with which the applicant or business is a national. They have to be investing in a US business that is real and operating commercial enterprise via a substantial investment that is not marginal. And the principal investor will develop and direct the business. Employees of the principal must be an executive or supervisor or possess essential skills. And the E-2 visa holders must intend to depart the US in the future. There's a lot of guidance available on what each of these criteria mean. We're not gonna go into them in detail here today, but just note them. If you think you can make an argument for each-1 of these you're in good shape. In terms of what the benefits are, these are typically valid for five years, also up to two years per entry. So you could stay for two years, step out, come right back in for another two years. But as with the E-1, you will get vetted each time to show that you are in compliance. They are continuously renewable. So as long as you can demonstrate compliance on each reentry, you can keep doing that as long as you know, the business is fulfilling it's stated objectives. You do not need to demonstrate a specific period of time, just the intent to eventually depart. So you don't have to say that I'm gonna depart within three years or I'm gonna depart within two years. You just have to say, when I'm done being a E-2 person, I will step out of the US. And in so doing, you can establish domicile in the US. You can move everything here, abandon any foreign residence and be in the US for the duration. But as soon as your E-2 is done, you have to state at least the intent to step out at that time. So you can be the beneficiary of an immigrant petition or labor cert. So you can actually kind of start the green card process, but you're not supposed to say that you plan on completing that process here in the US without stepping out. The spouses and children can obtain work authorization, again, for the period of the principal's duration. Benefits, also no cap. And also unlike the others, you don't need to sponsor. Spouses and kids get general work authorization. You basically just pick up the visa by scheduling an appointment at the embassy. Doesn't have a long burdensome process with USCIS beforehand, and you can get up to five years, depending on the country. Some countries don't allow it for five years. They allow it for more limited period of time, but you can regardless renew it indefinitely in two year increments. And like I said, you can move all your stuff here. Disadvantages, it's single intent. You're supposed to say that you do plan on departing at some point in the future. If you change status, you still must get vetted at the consulate to get the standpoint reentering. So if you're changing from student to E-2, still gotta make your case at the consulate. And you must continually demonstrate that by way of showing your business plan and that you're meeting the objectives of the business plan each time when you're coming in and you wanna get your visa stamped. With that said, we're gonna start moving on to our final categories of non-immigrant alternatives to the H-1B. And so now we're kind of scratching in terms of authorized employment when we're talking about visitors. The B-1 category is for business visitors, which is basically work that is outside the US labor market, "business activities" not US employment. So what is this? That's temporary work pursuant to a foreign employer's international transactions. Visitors can't enter the US labor market, but they may perform services on the premises of a US company pursuant to a business relationship between the company and a foreign employer. You have to demonstrate that your stay here is temporary, that you are here solely to engage in legitimate business activities, which are evidenced by specific and realistic plans, that you have adequate financial resources to carry out the purpose without having to work in the US, that you have compelling ties to the business sponsor, a foreign residence you do not intend to abandon, and that the function is a necessary incident to international trade or commerce. So what kind of stuff can you do here as a business visitor? You can conduct commercial transactions that do not involve being employed in the US. You can install service or repair equipment, purchase abroad, et cetera. Participate in scientific educational professional, or business conventions, conferences, seminars, et cetera. That's pretty straightforward. Stuff related to equipment. There are certain religious and charitable activities, board meetings, foreign corporate personnel, setting up a US subsidiary or exploring an E-2 investment. And servants employed abroad of US citizens returning or assigned to work for the US temporarily. So you say, this is a US citizens who might have an Au pair or whatever, working for them while they're on an international assignment. If they're temporarily coming back to the US before going back out, they can bring that Au pair or other person with them on their temporary return to the US. And of course it would be remiss if we did not mention the B-1 in lieu of an H-1B, this is an actual thing. It's a B-1 substitute for an H-1B. This is specifically to facilitate travel for what would be H-1B appropriate actions within a limited time scale. So the beneficiary must be paid from abroad. They can receive no remuneration other than expense allowances or reimbursement from expenses that are incidental to their stay. So that's a very big restriction right there. The foreign firm must be located abroad with payroll dispersed abroad. They must otherwise be eligible for an H-1, coming to the US to take a specialty occupation requiring a bachelor's or higher. They may use the B-1 to promote a business idea, to obtain funding and to form a business. And if that's all they're doing then a B-1 in lieu of an H-1B might make sense. So again, the very, very temporary nature is evident there. So it should be used sparingly. So basically if overseas employment has been less than a year or the H-1B quote has been exhausted, they didn't make it, Or the beneficiary does not qualify for an O-1 or they're from a country that does not have a treaty such that they wouldn't be eligible for an A-2, if just keep missing on all of these things, maybe a B-1 in lieu of an H-1B might be appropriate to get you here temporarily and maybe set the stage for eligibility in-1 of these other categories, you know, O-1, H-1B, L-1, E-2, et cetera. So B-1 might get you here and allow you to build a stronger case for one of these other E-2s. And lastly, we're gonna hit the visa waiver program. If you're from an eligible country and you only need to be here for 90 days, you can skip the visa entirely. And that's basically what it is. It's very similar to the B-1 in terms of what you are permitted to do. This is just a nice way to get here for a few months, conduct business activities that are not working and step back out without having to go through such a rigorous application process. For clients from a country that's eligible for the visa waiver program, they will know it. They do need to present evidence for their visa stay. And again, only 90 day admission. Crucially, they cannot extend or change status. So that's a very hard requirement. Once they hit the 90 days, they have to get out. This was an issue during COVID. They did not allow extensions. It's a statutory limit. There's no way to do it. But they were able to ask for forgiveness, basically with CBP. There are some other requirements, but we don't need to go into detail here. It's listed on the slides. And for those who are interested, starting with the next slide, we discuss green card options. So if you're not familiar with employment based green cards, there's just a very brief overview of the different green card categories. So for those who might be drawn to an H-1, they might not qualify, or are they otherwise maybe just wanna go straight for green card instead of the H-1, you can start your research here. But if you have any other questions, comments, concerns about anything covered here, please, again, refer to the second slide. Feel free to reach out to me directly, but otherwise this has been H-1B alternatives. Again, my name is Matthew Blaisdell. Thank you for joining us here at Quimbee, and have a great day.

Presenter(s)

MBJ
Matthew Blaisdell, JD
Owner
Matthew Blaisdell, Esquire

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