The H1B season is in full swing as US immigration attorneys around the world prepare to file their clients’ petitions during the first week of April. It is always an exciting time for the legal practices handling H1B visas for clients given the urgent requests and the uncertainty of being selected in the lottery. It can also be an extremely stressful time for employers and prospective employees for the same reasons.
The H1B visa is a temporary non-immigrant visa that allows a US employer to sponsor a foreign national to work in the United States. Basic requirements dictate that the prospective foreign employee have a bachelor’s degree or the equivalent in the U.S. (work experience may be substituted for a degree in certain circumstances), the employee will work in a specialty occupation, and the employer will pay the employee at least the prevailing wage for the position (as determined by the job location).
There are 65,000 visas available each year for a start date of October 1. Immigration attorneys must submit their clients’ petitions during the first week of April or they will not have a chance to be randomly selected in the lottery. The first 20,000 petitions received by the government for recipients who have a U.S. master’s degree or higher are exempt from the visa limit. Additionally, certain nonprofits and higher education positions are also exempt. The small visa application window and selection limit can make it an unattractive option for employers. This is especially true for employers looking to hire a foreigner quickly.
The United States Citizenship and Immigration Services (USCIS) receives far more requests each year than the visas available. This necessarily results in the random lottery. For fiscal year 2017, the government received more than 225,000 petitions, raising the probability that a beneficiary will be selected in the visa lottery to approximately 25%. Unfortunately, these are not great odds, especially if the US business requires the unique qualifications or skills of the foreign national.
Over the years, employers have tried to develop ‘tricks’ to give their beneficiary a better chance of being selected, including submitting duplicate applications for the same beneficiary. Fortunately, this practice is no longer allowed and USCIS will reject all petitions filed by a business if it determines that a duplicate petition was filed. What larger companies will do to increase your chances of having your H1B visas selected is increase your needs. The company would expand the offers to more candidates than they need, in anticipation that approximately 75% of the requests will be denied. While this practice is not against the rules, it certainly hurts the chances that other beneficiaries will be 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 employee outside of the H1B season, there are still alternatives to bringing him to the United States. One of the most underused alternatives is the special business concession visa, also known as the B1 visa instead of the H visa.
As the name implies, the B1 visa instead of the H visa allows its holder to enter the US with a B1 business visa instead 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. Like the H1B visa, the foreign national should have obtained at least the equivalent of a US bachelor’s degree and should come to the US to work in a specialty occupation. In addition, the employee must work on behalf of a foreign company and be paid by a foreign source (that is, not paid directly by the US company).
The B1 visa instead of the H visa is a good bridge visa to hold a beneficiary until the next H1B lottery, when another petition can be filed on their behalf. The B1 visa instead of the H visa is generally 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 visa instead of the H visa is a quick alternative to the H1B visa, you should not try to continually renew the visa as this could result in a denial. If a B1 rather than H applicant tries to renew the visa multiple times, the adjudicating embassy may assume that the applicant is trying to evade obtaining a proper H1B visa.
Another alternative in case a beneficiary is not selected for the H1B visa lottery is to obtain an E2 treaty investor visa or an E2 employee visa. In the first instance, if a beneficiary is needed in the United States to work in the information technology field, he could effectively create his own information technology consulting company through the E2 treaty investor visa and offer their services as an independent contractor to the employer who originally intended to hire them. Not only would the beneficiary be able to avoid the H1B lottery, but they would not be bound by the H1B length of stay rules, allowing them to stay in the US as long as their E2 business is in operation.
However, the E2 visa is not available to all foreign citizens. Unlike the H1B visa, the E2 visa is based on treaties that the United States has with specific countries. For example, citizens of India, Russia and China are not eligible for the E2 visa. For a complete list of eligible countries, visit the US Department of State website.
In addition to being a citizen of a treaty country, the E2 applicant must also make an investment in his business to qualify for the visa. While no specific dollar amount is indicated in the relevant rules and procedures, the investment must be significant. A large amount of investment depends on the type of business the applicant wishes to start 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 have the same treaty nationality as any possible employee of E2. Please see the following example:
Giovanni is an Italian citizen and has been offered a position with a US company that filed an H1B petition on his behalf. Unfortunately, Giovanni’s request was not selected. The US company, 100% owned by Croatian citizens, has heard about 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). See below for another example:
Olivia is a citizen of Denmark and, like Giovanni, her H1B petition was not selected in the lottery by the US company that wished to hire her. The company is 49% owned by US citizens and 51% by Danish citizens. Like Giovanni’s potential employer, Olivia’s company wants to register as an E2 company and hire her with 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 in case a foreign national is not selected in the H1B lottery. For additional visa categories and strategies, contact our office today.
