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

Posted by Alexandra Crandall | Jul 30,
2020

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.

About the Author: Alexandra
Crandall is an attorney at Dickinson Wright in Phoenix. She practices
business immigration, successfully assisting employers with the preparation of
immigrant and non-immigrant petitions to maintain their foreign national
workforce. Prior to joining the firm, Ms. Crandall served as a Judicial Law
Clerk to the Honorable Jennifer B. Campbell at the Arizona Court of Appeals.

[1]
8 U.S.C. § 1184(i)(1).

[2]
A complete list of qualifying occupations can be found in at 8 CFR
§214.6(c).

[3]
Countries with qualifying treaties can be found at the Department
of State’s website.

[4]
See 8 CFR 214.2(e)(9) for a comprehensive list.

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