Options To H-1B Visa

THE CAP for the H-1B non-immigrant working visa for the fiscal year (October 1, 2011 to September 30, 2012) has now been reached. The H-1B is one of the most common working visas. As such, with the cap being reached, this leaves many foreign workers in limbo as they are unable to obtain the necessary work visa to legally work and remain in the United States. Fortunately, there are other immigrant and nonimmigrant visas available for those who find themselves outside of the H-1B visa cap. The following is a list of the most popular non-immigrant options that are available to foreign workers and/or their sponsoring companies:

E-2: Treaty Trader/Treaty Investor

The E-2 classification is available to British Nationals through a treaty entered by the United States and the United Kingdom. The E-2 classification can be useful to companies who want to sponsor foreign workers or for individuals who want to start their own companies.

Foreign Workers

In order to qualify for the E-2 as a foreign worker, the foreign worker must:

• Have the same nationality as the principal employer (in essence, if the foreign worker is a British national, then the sponsoring company must also be owned by a British national or company); and
• Be engaging in duties of executive or supervisory in nature (the employee’s duties enables him/her to exercise ultimate control and responsibility for the organization’s overall operations) or have specialized skills that makes the employee essential to the efficient operation of the business.

Foreign Investors

In order to qualify for the E-2 treaty investor, the investor must:

• Be in the process of investing or has invested a substantial amount of money in a US company (we typically recommend a $100,000.00 investment);
• Develop and direct the investment enterprise (the investor should own at least 50 percent of the company or must have operational control of the company); and
• The invested funds must be at risk to total loss.

O-1 Classification: Extraordinary Ability

The O-1 classification is available to individuals with an extraordinary ability in the sciences, education, business, arts, or athletics.

In order to qualify for the O classification, the foreign worker must have a company sponsor him/ her and the foreign worker must demonstrate that he/she has sustained national or international acclaim and that he/she will continue to work in his/her area of expertise.

Extraordinary ability in the fields of science, education, business or athletics means that the foreign worker is “one of the small percentage who has risen to the very top of the field”.

Extraordinary ability in the field of arts means achieving “a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”

L-1: Intracompany Transferee

There are two L-1 classifications– L-1A and L-1B. The L-1A classification allows a US company to transfer an executive or manager from one of its foreign affiliates to an office in the United States. This classification also allows a foreign company, who does not yet have a branch/presence in the United States, to send an executive or manager to the United States for the purpose of establishing a US Office. The L-1B allows a US company to transfer a person with specialized knowledge from one of its foreign affiliates to an office in the United States. This classification also allows a foreign company, who does not yet have a branch/presence in the United States, to send a person with specialized knowledge to the United States for the purpose of establishing a US Office.

In order to qualify for L-1 classification, the employer must:

• The US company must have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate); and
• The US and foreign company must be “doing business” while the foreign worker is on an L-1 classification. Doing business means the regular, systematic, and continuous provision of goods and services by the US and foreign company. Merely having an office is not sufficient.

In addition to the employer requirements, the employee must also meet certain requirements.

For an L-1A classification, the employee must:

• Have worked for the foreign company one of the last three years immediately preceding his/her admission to the United States; and
• Seeks to enter the United States in an executive or act in a managerial capacity. Executive capacity means the employee has the authority to make decisions without too much oversight. Managerial capacity means the employee has the authority to supervise and control the work of professional employees and to manage the company, or a department in the company.

For an L-1B classification, the employee must:

• Have worked for the foreign company one of the last three years immediately preceding his/her admission to the United States; and
• Seeks to enter the United States in a specialized knowledge capacity. Specialized knowledge means the employee possess special knowledge of the petitioning organization’s services, products, techniques, equipment, management, and so forth.

In addition to the above non-immigrant visas, there are also immigrant visas (green card) that are available to foreign workers. Executives, investors, and foreigners with extra-ordinary abilities can get their immigrant visas sometimes as quickly as the non-immigrant visas.

The above information is given for informational purposes only and should not be taken as legal advice. Please consult with an attorney to discuss the particulars of your own case. Stephen Ure can be contacted at (619) 235-5400, or email: ure@prodigy.net

This article was first published in December 2011