“I Lost the H-1B Lottery… Now What?” Four Nonimmigrant Visa Alternatives to Employ for Foreign Professionals

Every year, U.S. employers seeking to employ foreign nationals petition United States Citizenship and Immigration Services (“USCIS”) for work authorization under the H-1B visa program. Employment positions qualify for an H-1B visa when the job requires (1) theoretical and practical application of a body of highly-specialized knowledge and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation.[1]

For most U.S. employers, Congress has restricted the number of H-1B visas available each year at 65,000, with an additional 20,000 for foreign professionals who have completed a graduate program in the United States. Some employers are exempt from the H1-B cap, including institutions of higher education and affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations.

In recent years, because demand has exceeded the available supply of cap-subject H-1B visas, U.S. employers have been forced to hurdle a lottery process before USCIS will adjudicate their petitions on the merits. With nearly 275,000 registrants for this year’s H-1B cap lottery alone, the odds are decidedly stacked against employers seeking H-1B visas for foreign professionals.

Still, all is not lost for U.S. employers who were unsuccessful in this year’s H-1B lottery (or whose H-1B petitions were denied) as some alternatives exist for highly-skilled nonimmigrant workers:

TN

The TN visa classification is available to citizens of Mexico and Canada pursuant to the North American Free Trade Agreement, now the United States-Mexico-Canada Agreement (USMCA). The foreign professional must have a job offer from a U.S. employer to work in a qualifying profession, which include accountants, engineers, graphic designers, lawyers, social workers, urban planners, physicians, scientists, and teachers, among others.[2] In order to qualify, the foreign professional must meet the eligibility criteria as defined for each profession, which in most cases means holding a related bachelor’s degree. TNs may request a validity period of up to three years. Notably, Mexicans who apply directly at a U.S. Consulate will only receive a one-year visa stamp, though they may request to be admitted for three years. There is no limitation on the total number of years a foreign professional may hold TN classification, though they must hold non-immigrant intent, which may become problematic over time as ties to his or her home country become more tenuous. Any accompanying spouse or children under the age of 21 may be eligible for dependent nonimmigrant status, but they cannot gain employment authorization.

E-1/E-2

E-1 and E-2 visas are available to foreign traders and investors whose countries have entered into a qualifying treaty with the United States.[3] Although this visa does not explicitly apply to foreign professionals, many may qualify. Nonimmigrants in these classifications may be admitted for up to two years at a time. Accompanying spouses may apply for employment authorization.

To gain E-1 status, the foreign national must be entering the U.S. to engage in substantial trade, principally between the U.S. and the country with a qualifying treaty. There is no minimum requirement for value or volume of transactions, but the activities must be “substantial,” meaning there is a continuous flow of international trade items between the treaty country and the U.S. Items of trade may include goods, services, insurance, transportation, tourism, and technology.[4] More than 50% of the volume of trading activities must occur between the U.S. and the treaty country.

Similarly, gaining E-2 status requires proof that the foreign national has invested a substantial amount of capital in a bona fide U.S. enterprise and that the foreign national’s entry is solely to develop and direct the investment enterprise. The foreign national must show at least 50% ownership of the enterprise or operational control through his or her status in a managerial position. Investments qualify when the capital is subject to partial or total loss if the investment fails, substantial in relationship to the total cost of purchasing or establishing an enterprise, and sufficient to ensure the foreign national’s financial commitment to the investment’s success. USCIS will also require proof that the enterprise provides services or goods for profit as a real, active, and operating commercial or entrepreneurial undertaking.

Employees of the principal treaty trader or investor may also qualify for E classification when the employee is of the same nationality as the principal and will be engaged in executive/supervisory roles or is specially qualified with skills that make the employee essential to the efficient operation of the enterprise.

E-3

The E-3 visa classification is available to Australian citizens pursuant to the Australia-U.S. Free Trade Agreement. A total of 10,500 E-3 visas are permitted per fiscal year. Similar to the H-1B context, E-3 visas require a legitimate offer of U.S. employment in a position that qualifies as a “specialty occupation.” Also similar to the H-1B, the employer must file a labor condition application (LCA), in which it makes certain attestations regarding the employment of the foreign worker, most notably that it will pay the required wage to the foreign worker. Of course, the foreign national must also prove that he or she possesses the necessary academic or other qualifying credentials. E-3s are eligible for admission for a period of up to two years, with no limit on subsequent extensions, and accompanying spouses may apply for employment authorization.

O-1

Unlike the above visa categories, the O-1 is not limited to citizens of a specific country, but to “aliens of extraordinary ability” in the fields of science, arts, education, business, athletics, television, or motion picture industry. The precise test for “extraordinary ability” varies according to the field. “Extraordinary ability” in the fields of science, business, or athletics requires a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor. By contrast, those in the arts must show distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree or skill and recognition substantially above that ordinarily encountered to the extent that the person described as prominent is renowned, leading, or well-known in the field of arts. Those seeking to demonstrate extraordinary ability in the motion picture or television industry must demonstrate extraordinary achievement in motion picture and television productions, which means a very high level of accomplishment in the motion picture or television industry as evidenced by a degree of skill and recognition significantly above that ordinarily encountered, to the extent the person is recognized as outstanding, notable, or leading in the motion picture and/or television field.

O-1s may be admitted for up to three years, with (typically) one-year extensions available upon evidence showing that continued presence is required to complete the event or activity for which the foreign national was admitted. An accompanying spouse cannot work in the U.S. in O-3 dependent status.