The H1B Specialty Occupation Visa
H1B season is fully swinging, as US immigration lawyers across the worldwide prepare to file their client's petitions during the primary week of April. it is often an exciting time for law practices handling H1B visas for clients given the time-sensitive petitions and uncertainty of being selected within the lottery. It also can be a particularly stressful period for employers and prospective employees for equivalent reasons.
The H1B visa may be a temporary non-immigrant visa allowing a US employer to sponsor a far off national for employment within us. the essential requirements dictate that the potential foreign employee hold a baccalaureate or the US equivalent (work experience are often substituted for a degree in certain circumstances), the worker is going to be working during a specialty occupation, and therefore the employer can pay the worker a minimum of the prevailing wage for the position (as determined by the situation of the job).
There are 65,000 visas available annually for a start date on 1 October. Immigration attorneys must file their client's petitions during the primary week of April or they're going to not have an opportunity of being selected within the random lottery. the primary 20,000 petitions received by the govt for beneficiaries who hold a US academic degree or higher are exempt from the visa cap. Additionally, certain non-profit companies and better education positions also are exempt. The visa's small petition window and selection cap can make it an unattractive option for employers. this is often very true for employers looking to rent a far off national quickly.
US Citizenship and Immigration Services (USCIS) receives many more petitions annually than visas available. This necessarily leads to a random lottery. For the financial year 2017, the govt received over 225,000 petitions - bringing a beneficiary's chance for being selected within the visa lottery to approximately 25%. Unfortunately, these aren't 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 far better chance of being selected - including filing duplicate petitions for an equivalent beneficiary. Fortunately, this practice is not any longer allowed, and USCIS will reject all petitions filed by a corporation if they determine a replica petition was filed. What larger companies will do to extend their chances of getting their H1B visas selected is to inflate their needs. the corporate would extend offers to more candidates than they have, in anticipation of roughly 75% of the petitions being denied. While this practice isn't against the principles, it certainly harms the probabilities of other beneficiaries being selected within the lottery.
What are the alternatives to the H1B visa?
If one's petition isn't selected within the H1B visa lottery, or an employer requires a far off national employee outside of the H1B season, there are still alternatives to bring them to us. one of the foremost underused alternatives is that the Special Business Concession visa also referred to as the B1 instead of H visa.
As its name implies, the B1 instead of H visa allows its holder to enter the US with a B1 Business visa in situ of a correct H1B visa. Specifically, the visa allows a far off national to enter us to perform productive work for a short-lived period of your time. just like the H1B visa, the foreign national should have earned a minimum of the equivalent of a US baccalaureate and will be coming to the US to figure during a specialty occupation. Additionally, the worker must work on behalf of a far off company and be paid by a far off source (i.e. not paid directly from the US company).
The B1 instead of H visa may be a good bridge visa to carry a beneficiary over until subsequent H1B lottery when another petition is often submitted on their behalf. The B1 instead of H visa is usually issued for 1 (1) year. Its holder can then enter the US for a maximum period of six (months), which may be extended to finish the complete year.
While the B1 instead of H visa may be a fast alternative to the H1B visa, one shouldn't plan to continually renew the visa, as this might end in a denial. Should a B1 instead of H applicant plan to renew the visa multiple times, the embassy charged with adjudication may assume the applicant is trying to bypass obtaining a correct H1B visa.
Another alternative should a beneficiary not be selected for the H1B visa lottery is sourcing either an E2 Treaty Investor visa or an E2 Employee visa. within the first instance, if a beneficiary is required within us to figure within the IT field, they might 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 ready to avoid the H1B lottery, but they also might not bound by the H1B length of stay rules - allowing them to stay within the US for as long as their E2 business is up and running.
The E2 visa, however, isn't available to all or any foreign nationals. Unlike the H1B visa, the E2 visa is predicated on treaties the US has in situ with specific countries. for instance, nationals of India, Russia, and China aren't eligible for the E2 visa. For an entire 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 additionally required to form an investment in his or her business to qualify for the visa. While there's no specific dollar amount noted within the relevant rules and procedures, the investment should be significant. a robust investment amount depends on the sort of business the applicant is looking to start-up and will be discussed in consultation with a professional immigration attorney.
The second E2 visa option is that the E2 Employee visa. As within the case of the E2 Treaty Investor visa, the E2 Employee visa requires citizenship of a treaty country. While the worker visa option doesn't require an investment on behalf of the worker, the US company must already be registered with a US embassy. Additionally, the US company must hold an equivalent treaty nationality as any prospective E2 employee. Please see the below example:
Giovanni may be a national of Italy and has been offered an edge with a US company that filed an H1B petition on his behalf. Unfortunately, Giovanni's petition wasn't selected. The US company, 100% owned by Croatian nationals, has heard of the E2 visa and is willing to spend the cash to form the investment, register the corporate as an E2 company, and hire Giovanni as an E2 employee. Unfortunately, the E2 Employee visa wouldn't work as Giovanni and therefore the company doesn't share an equivalent nationality (i.e. Giovanni is Italian and therefore the company is 100% Croatian owned). Please see below for an additional example:
Olivia may be a national of Denmark, and like Giovanni, her H1B petition wasn't selected within the lottery by the US company wishing to rent her. the corporate 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 can be allowed because the majority of the corporate is Danish owned and shares an equivalent treaty nationality with Olivia.
The above visa options are just a couple of alternatives should a far off national not be selected within the H1B lottery. for extra visa categories and methods, please contact our office today.
Orlando Ortega-Medina is lead counsel for the U.S. business immigration firm of Ortega-Medina & Associates, headquartered in London, England (UK). The firm also maintains an Of Counsel relationship with The Erlich Firm in San Francisco, California. Mr. Ortega-Medina has particular expertise and insight into complex U.S. business immigration cases and is usually engaged by other counsel to troubleshoot visa denials.
The H1B visa may be a temporary non-immigrant visa allowing a US employer to sponsor a far off national for employment within us. the essential requirements dictate that the potential foreign employee hold a baccalaureate or the US equivalent (work experience are often substituted for a degree in certain circumstances), the worker is going to be working during a specialty occupation, and therefore the employer can pay the worker a minimum of the prevailing wage for the position (as determined by the situation of the job).
There are 65,000 visas available annually for a start date on 1 October. Immigration attorneys must file their client's petitions during the primary week of April or they're going to not have an opportunity of being selected within the random lottery. the primary 20,000 petitions received by the govt for beneficiaries who hold a US academic degree or higher are exempt from the visa cap. Additionally, certain non-profit companies and better education positions also are exempt. The visa's small petition window and selection cap can make it an unattractive option for employers. this is often very true for employers looking to rent a far off national quickly.
US Citizenship and Immigration Services (USCIS) receives many more petitions annually than visas available. This necessarily leads to a random lottery. For the financial year 2017, the govt received over 225,000 petitions - bringing a beneficiary's chance for being selected within the visa lottery to approximately 25%. Unfortunately, these aren't 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 far better chance of being selected - including filing duplicate petitions for an equivalent beneficiary. Fortunately, this practice is not any longer allowed, and USCIS will reject all petitions filed by a corporation if they determine a replica petition was filed. What larger companies will do to extend their chances of getting their H1B visas selected is to inflate their needs. the corporate would extend offers to more candidates than they have, in anticipation of roughly 75% of the petitions being denied. While this practice isn't against the principles, it certainly harms the probabilities of other beneficiaries being selected within the lottery.
What are the alternatives to the H1B visa?
If one's petition isn't selected within the H1B visa lottery, or an employer requires a far off national employee outside of the H1B season, there are still alternatives to bring them to us. one of the foremost underused alternatives is that the Special Business Concession visa also referred to as the B1 instead of H visa.
As its name implies, the B1 instead of H visa allows its holder to enter the US with a B1 Business visa in situ of a correct H1B visa. Specifically, the visa allows a far off national to enter us to perform productive work for a short-lived period of your time. just like the H1B visa, the foreign national should have earned a minimum of the equivalent of a US baccalaureate and will be coming to the US to figure during a specialty occupation. Additionally, the worker must work on behalf of a far off company and be paid by a far off source (i.e. not paid directly from the US company).
The B1 instead of H visa may be a good bridge visa to carry a beneficiary over until subsequent H1B lottery when another petition is often submitted on their behalf. The B1 instead of H visa is usually issued for 1 (1) year. Its holder can then enter the US for a maximum period of six (months), which may be extended to finish the complete year.
While the B1 instead of H visa may be a fast alternative to the H1B visa, one shouldn't plan to continually renew the visa, as this might end in a denial. Should a B1 instead of H applicant plan to renew the visa multiple times, the embassy charged with adjudication may assume the applicant is trying to bypass obtaining a correct H1B visa.
Another alternative should a beneficiary not be selected for the H1B visa lottery is sourcing either an E2 Treaty Investor visa or an E2 Employee visa. within the first instance, if a beneficiary is required within us to figure within the IT field, they might 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 ready to avoid the H1B lottery, but they also might not bound by the H1B length of stay rules - allowing them to stay within the US for as long as their E2 business is up and running.
The E2 visa, however, isn't available to all or any foreign nationals. Unlike the H1B visa, the E2 visa is predicated on treaties the US has in situ with specific countries. for instance, nationals of India, Russia, and China aren't eligible for the E2 visa. For an entire 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 additionally required to form an investment in his or her business to qualify for the visa. While there's no specific dollar amount noted within the relevant rules and procedures, the investment should be significant. a robust investment amount depends on the sort of business the applicant is looking to start-up and will be discussed in consultation with a professional immigration attorney.
The second E2 visa option is that the E2 Employee visa. As within the case of the E2 Treaty Investor visa, the E2 Employee visa requires citizenship of a treaty country. While the worker visa option doesn't require an investment on behalf of the worker, the US company must already be registered with a US embassy. Additionally, the US company must hold an equivalent treaty nationality as any prospective E2 employee. Please see the below example:
Giovanni may be a national of Italy and has been offered an edge with a US company that filed an H1B petition on his behalf. Unfortunately, Giovanni's petition wasn't selected. The US company, 100% owned by Croatian nationals, has heard of the E2 visa and is willing to spend the cash to form the investment, register the corporate as an E2 company, and hire Giovanni as an E2 employee. Unfortunately, the E2 Employee visa wouldn't work as Giovanni and therefore the company doesn't share an equivalent nationality (i.e. Giovanni is Italian and therefore the company is 100% Croatian owned). Please see below for an additional example:
Olivia may be a national of Denmark, and like Giovanni, her H1B petition wasn't selected within the lottery by the US company wishing to rent her. the corporate 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 can be allowed because the majority of the corporate is Danish owned and shares an equivalent treaty nationality with Olivia.
The above visa options are just a couple of alternatives should a far off national not be selected within the H1B lottery. for extra visa categories and methods, please contact our office today.
Orlando Ortega-Medina is lead counsel for the U.S. business immigration firm of Ortega-Medina & Associates, headquartered in London, England (UK). The firm also maintains an Of Counsel relationship with The Erlich Firm in San Francisco, California. Mr. Ortega-Medina has particular expertise and insight into complex U.S. business immigration cases and is usually engaged by other counsel to troubleshoot visa denials.
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