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H-1B Visa Alternatives: Options & Strategies In The Current Immigration Climate
 
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By: Shaune D. Fraser, Esq.

On Friday, April 5, the United States Citizenship and Immigration Services (USCIS) announced that it had already received sufficient filings for regular H-1B cap-subject cases for fiscal year (FY) 2020. The filing period for cap-subject H-1B petitions opened on Monday, April 1, and for the seventh consecutive year, the general cap was reached within the first week of filing. USCIS will now conduct a lottery to select those petitions that will be adjudicated. Beginning this year, USCIS will officially reverse the order of the general and advanced degree lotteries, prioritizing advanced degree holders in the selection pool.  

Over the past decade, the H-1B visa has been the most practical bridge to employment for graduating students at U.S. academic institutions (F-1 visa holders). However, recent USCIS statistics indicate that 60% of H-1B cases received RFEs (Request of Evidence) in FY 2019 and 40% of those were subsequently denied. These historically high denial rates and the changes to the selection order under the H-1B visa lottery stem from the Buy American and Hire American Executive Order which has resulted in heightened scrutiny during adjudication, specifically as it relates to the interpretation of a specialty occupation, the qualifying employer-employee relationship, and whether the foreign national beneficiary has maintained status.  

In light of these developments and the very high demand for the H-1B classification, F-1 students and other qualified individuals are encouraged to explore the following alternative visa categories which may utilized to facilitate the same employment-related objectives in a swift and efficient manner:  

  • O-1 Visa
    Foreign nationals, in any field of endeavor, who have been recognized for their achievements or outstanding work, in the U.S. or internationally, should consider the O-1 visa in lieu of the H-1B. An O petition may be approved for up to three years, and extensions may be granted indefinitely for long-term projects or assignments. Currently, there is no annual limit on O visa numbers. For more information, check out this Blog post.  

  • EB-2 NIW | Green Card
    In a precedent decision issued in December 2016 (Matter of Dhanasar), the USCIS Administrative Appeals Office (AAO) announced a new analytical framework that has made this green card classification more broadly available to students and professionals pursuing entrepreneurial endeavors in the U.S. national interest.  

  • TN Visa
    Canadian and Mexican citizens who will perform professional assignments in the U.S. are eligible for the TN visa. A TN petition may be valid for up to three years and can be filed with USCIS, or directly at select ports of entry. The North American Free Trade Agreement (NAFTA) specifies the list of occupations, as well as the corresponding educational and/or licensure requirements, many of which are aligned with the careers of graduating undergraduate or graduate international students.  

  • L-1 Visa
    This category permits a U.S. company to temporarily transfer certain employees from a foreign affiliate abroad. The employee must be offered employment in either an executive/managerial position (L-1A) or in a specialized knowledge position (L-1B) to qualify for this classification. The foreign national must have been employed by the qualifying foreign corporation for at least one continuous year within the previous three years.  

In addition to the above-referenced visas, there remain a variety of other visa and green card classifications available to those applicants encountering issues with their H-1B petitions. Some of these categories include the EB-1 green card for individuals of extraordinary ability, P-1 visa for athletes and entertainers, E-1/E-2 visas for treaty traders/investors, and B-1 visa for business visitors.

The U.S. remains the global leader in attracting the most talented students and professionals, however, increased scrutiny and restrictionist policies have imposed significant hurdles to those intending to advance their professional careers with U.S.-based corporations. Foreign nationals are advised to begin planning their professional careers well in advance of their anticipated graduation date and, when possible, explore other U.S. immigration categories in order to accelerate their post-academic, professional careers. 


For more information, please contact me at shaune@fraserpllc.com 

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

Copyright © 2019, FRASER IMMIGRATION LAW, PLLC. All Rights Reserved.

 
Is the O.1A Visa the best option for Business and Tech Professionals?
 
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15 January 2019 / US Immigration /Blog / Series: O.1 

 

By: Shaune D. Fraser, Esq.

 

For tech, business, and corporate professionals, and even some F.1 students and J.1 exchange visitors, the O.1A classification has emerged as an increasingly popular visa category in lieu of the H.1B. 

Each year, hundreds of thousands of foreign nationals are immersed in the burdensome process of obtaining a U.S. employment visa. Due to the sheer volume of H.1B applications, these professionals often encounter employment and travel-related issues during this season. In 2018, the congressionally mandated limit of 85,000 H.1B visas (65,000 cap-subject & 20,000 advanced degree exemption) was reached within 5 business days.[1]

Later this year, in August, USCIS announced an extension of its suspension of the premium processing program for all FY 2020 H.1B cap-subject applicants and expanded it to include additional petitions.[2] The USCIS premium processing service allows employers to pay an additional $1,410 filing fee for expedited processing within 15 calendar days and has traditionally included H.1B petitions.

To further complicate this situation, USCIS has reinterpreted the definition of an H.1B “specialty occupation” to exclude positions that were approved in years past.[3] As a result, U.S. employers have received significant increases in requests for evidence (RFEs), adding further complexity, expense, and uncertainty to this onerous process.[4]

Unlike the H.1B visa, the O.1A classification has no annual numeral limitation/cap and there is no visa lottery.[5] This 3-year employment visa is reserved for individuals who possess extraordinary ability in the sciences, education, business, or athletics.[6] Per the regulations, “extraordinary ability” is exhibited through a showing of sustained national or international acclaim and a demonstrated record of achievement.[7]

Contrary to popular belief, this visa is available to tech, business, and corporate professionals who possess special skills in their area of expertise (not just Nobel Prize laureates or Oscar winners, et. al.). Talented professionals in these fields can establish eligibility through the submission of documentation that fulfills at least three (3) of the below-listed O.1A criteria:

  • Employment in a critical or essential capacity;

  • Original scientific, scholarly, or business-related contributions;

  • Published material about you in professional or major trade publications, or other major media;

  • Membership in associations;

  • Authorship of scholarly articles in the field, in professional journals, or other major media;

  • High salary or other remuneration;

  • Participation as an official judge/reviewer of the work of others; and

  • Receipt of a national or international award.[8]

Moreover, the USCIS premium processing program remains available to O.1A applicants, allowing for approvals to be secured very quickly (within 15 days) once the requisite documentation is obtained.[9] 

Despite the restrictive effects of the Buy American and Hire American (BAHA) Executive Order and associated policies on immigration categories such as the H.1B,[10] the O.1A visa remains a viable option for tech, business, and corporate professionals, and could be the best employment-based immigration option for qualifying foreign nationals.

 

For more information on the O.1A category or any other immigration options, please contact me at shaune@fraserpllc.com.

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

­­­Copyright © 2019, FRASER IMMIGRATION LAW, PLLC. All Rights Reserved.  


 
 

[1] Press Release, U.S. Citizenship and Immigration Services, USCIS Reaches FY 2019 H-1B Cap (Apr. 6, 2018), https://www.uscis.gov/news/alerts/uscis-reaches-fy-2019-h-1b-cap.

[2] Press Release, U.S. Citizenship and Immigration Services, USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays (Aug. 28, 2018), https://www.uscis.gov/news/uscis-extends-and-expands-suspension-premium-processing-h-1b-petitions-reduce-delays.  

[3] American Immigration Council, Challenging USCIS “Not a Specialty Occupation” H-1B Petition Denial (October 16, 2018), https://www.americanimmigrationcouncil.org/litigation/challenging-uscis-not-specialty-occupation-h-1b-petition-denial

[4]  National Foundation for American Policy (NFAP), H-1B Visas By The Numbers: 2017-2018 (April 2018), https://nfap.com/wp-content/uploads/2018/04/H-1B-Visas-By-The-Number-FY-2017.NFAP-Policy-Brief.April-2018.pdf 

[5] U.S. Citizenship and Immigration Services (USCIS) Office of Business Liaison, Employer Information Bulletin 15, “Aliens with Extraordinary Ability (O-1) and Accompanying/Assisting Aliens (O-2)” (Dec. 8, 2004), 82 Interpreter Releases 180-84 (Jan. 17, 2005); Legacy INS, J. Bednarz (Sept. 29, 1992), 69 Interpreter Releases 1471-72 (Nov. 16. 1992).

[6] 8 C.F.R. §214.2(o)(3)(iii).

[7] Id.

[8] 8 C.F.R. §214.2(o)(3)(iii)(B).

[9] U.S. Citizenship and Immigration Services, O-1 Visa: Individuals of Extraordinary Ability or Achievement, https://www.uscis.gov/working-united-states/temporary-workers/o-1-visa-individuals-extraordinary-ability-or-achievement.

[10] See Exec. Order No. 13788: Buy American and Hire American, 82 Fed. Reg. 18837, 18839 (April 18, 2017).