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  • Matthew Kolodziej

What options do I have if I did not win the H-1B lottery? Here are other visas to consider.

The H-1B visa is usually the first choice for many international students who want to work in the U.S. long-term after holding an F-1 visa. However, if you wish to stay in the U.S., applying for an H-1B visa is not your only option. The legal team at JLG has compiled an in-depth list of options below:



Temporary (Non-immigrant) Visas


F-1: Student Visa

If you would like to continue your education, then applying for or maintaining your F-1 student visa status is the preferred option. For those who are in the 60-day grace period, it is recommended to leave the U.S. as soon as possible and apply to a U.S. school from their home country. After obtaining a valid I-20 and F-1 visa, you would be able to re-enter the U.S. Those who still have some time left on their OPT can apply for a program to continue their studies before their OPT expires and obtain a new I-20 to maintain their student status. Matthew Kolodziej Esq. would like to remind you that if you obtain a bachelor's or master's degree in the U.S., pay special attention to the school and/or program. Do not choose an institution that is not a properly accredited or reputable school or enroll in language programs to maintain your status as this may result in an in-depth scrutiny of future H-1B applications or entries into the U.S.


Cap-exempt H-1B Application

Cap-exempt H-1B applications can be submitted at any time and are not subject to quota limitations of the H-1B lottery. However, USCIS will still review applications based on the normal H-1B requirements.


To qualify as a cap-exempt employer, they must usually be institutions of higher education or nonprofit organizations such as:

  1. Universities (including all professional positions, not limited to only professors)

  2. Nonprofit organizations affiliated with or related to universities

  3. Nonprofit research organizations or institutes

  4. Government research organizations


O-1 Visa: Individuals with Extraordinary Ability or Achievement

The O-1 visa is designed for individuals with extraordinary abilities in the sciences, arts, education, business, or athletics or who has a demonstrated record of extraordinary achievement in their industry and has been recognized nationally or internationally for those achievements. USCIS has very high standards for O-1 applicants who are required to prove and document that they are leading in their respective fields through awards, publications, media attention, citations, or other means. Note the Biden administration has said that university graduates with STEM degrees may obtain O-1 visas more easily.


The advantages of the O-1 visa are as follows:

  1. The O-1 visa does not have a quota limit, meaning that there is no set number of visas to be issued per year, no lottery, and applications can be filed at any time.

  2. O-1 visas can be extended indefinitely.


L-1 Visa: Intracompany Transferee

The L-1 visa is another viable option for foreign nationals who are employed with a company that has branches or subsidiaries both abroad and in the United States. This visa allows employees to transfer from a foreign office or location of a multinational corporation to its branch in the United States. The L-1 visa is only applicable to managers/executives or people with highly advanced or specialized knowledge within a company.


The advantages of the L-1 visa include:

  1. The advantages of the L-1 visa include ease of application process, as there is no need for U.S. labor certification and there is no quota or lottery.

  2. L-1 visa holders may apply for a green card under the EB-1C category as a multinational Intracompany Transferee.

  3. L-1 visa holders can potentially bring their spouse and children under the age of 21 to stay with them in the United States and the spouse can work.


Spouse or Dependent Visa

If your spouse holds any type of student or work visa, you may be able to apply for the corresponding spouse or dependent visa, such as F2, H4, O2, O3, etc. It should be noted that the ability to work of visa holders of this type may be restricted to a certain extent. For example, not all H-4 visa holders can work unless their spouse has started the green card process.


E-2 Visa: Treaty Investor

The E-2 visa is an ideal option for entrepreneurs and investors from treaty countries who wish to start a business or invest in a business in the United States. A list of these countries can be found here which include most European countries, Argentina, Australia, Canada, Japan, Sri Lanka, Taiwan, etc. Applicants must be developing or directing an enterprise or a highly specialized employer of such an enterprise in which they have invested substantial funds. The business must create jobs in the U.S. Applicants can apply together with their family members (spouse and unmarried children under 21, regardless of nationality).


Although mainland China is not currently on the treaty country list, individuals born in mainland China who hold passports from treaty countries can still apply for E-2 visas.


TN Visa: NAFTA Professionals

The North American Free Trade Agreement (NAFTA) allows certain Canadian and Mexican professionals to work in the United States, including pharmacists, engineers, scientists, professors, accountants, and others. See list of TN occupations here.


The advantages of the TN visa are:

  1. Canadian citizens applying for the TN visa do not need to apply for a visa through the U.S. consulate. They can simply submit the relevant materials at the border or port of entry when entering the United States and enter directly in TN status.

  2. The spouse and children of a TN visa holder can accompany them to enter the U.S. but would not be able to work.

  3. The TN visa can be renewed indefinitely.

  4. A TN visa holder can work part-time.


Permanent Residence (Green Card)


In addition to the non-immigrant visa types mentioned above, immigrant visas are also an option that people can consider. Although these visas lead to permanent residence (a “green card”), such applications generally have stricter requirements and longer wait times. Before applying, carefully check the application requirements and ask an immigration lawyer to make a comprehensive evaluation.


EB-1: Extraordinary Ability Green Card

EB-1 is divided into three categories: A, B, and C, all of which require applicants to demonstrate special abilities or executive or managerial experience. The specific fields covered by each category are as follows:


EB-1A: Extraordinary Ability

This specifically refers to talents who have achieved national or international recognition in the fields of science, arts, education, business, or athletics. An EB-1A application does not require employer sponsorship. However, the standard for approval is the highest of all visa types and is commonly referred to as the “genius visa”.


EB-1B: Outstanding Professors and Researchers

This refers to individuals who have achieved international recognition in the research field. Applicants are required to have at least three years of work experience in teaching or research in an academic area and their purpose for coming to the U.S. is to continue teaching and research work in a university or other research institutions.


EB-1C: Multinational Managers or Executives

The applicant must have worked for at least one year in the three years prior to the application at a foreign subsidiary of the same company outside the U.S., and then continue to work for the same company's U.S. subsidiary after coming to the U.S. The position that the applicant holds in the multinational corporation must be a managerial or executive position.


EB-2: Advanced Degree Holders and Individuals with Exceptional Ability

This category is aimed at "foreign employees who have advanced degrees or equivalent qualifications in a profession" and "foreign employees whose abilities will fully benefit the U.S. economy, culture, education, etc. in the sciences, arts, or business."


Unless the beneficiary applies for a National Interest Waiver, EB-2 applicants must obtain an approved labor certification issued by the U.S. Department of Labor and have a job offer from a U.S. employer who is willing to sponsor them for permanent residency. Once these documents are completed, the U.S. employer can submit Form I-140 (Immigration Petition for Alien Workers) to USCIS and eventually file a green card application.


The whole process may take 2-3 years or more and even longer for certain nationalities such as Chinese and Indian nationals.


The EB-2 second priority category requires the following conditions:

  1. The beneficiary must have a master's degree or a bachelor's degree plus 5 years of work experience in their field of expertise, or

  2. Proof of extraordinary ability* in the sciences, arts, or business.

*Extraordinary ability refers to having a level of expertise significantly above what is ordinarily encountered in the field.


EB-3: Skilled Workers, Professionals, and Other Workers (unskilled/non-technical workers)

The EB-3 visa grants permanent residency to individuals who are needed by U.S. employers for the benefit of the U.S. economy. The U.S. employer would need to provide a genuine commitment to permanent employment and demonstrate that there are no qualified U.S. workers available to fill the position before obtaining a labor certification from the U.S. Department of Labor.


The whole process may take 2-3 years or more and even longer for certain nationalities such as Chinese and Indian nationals.


The EB-3 application must meet the following basic conditions:

  1. For skilled workers, at least 2 years of work experience, education, or training that meets the job requirements specified in the labor certification.

  2. For professional workers, a bachelor's degree or equivalent. Education and experience cannot be substituted for a baccalaureate degree.

EB-2 and EB-3 applications are also the green card application routes that most H-1B visa holders will seek.


EB-5: Immigrant Investor Program

The EB-5 program was created to stimulate the U.S. economy through job creation and capital investment by foreign investors. Investment immigration is divided into two categories: direct investment and regional center. The process may take many years with long wait times for Chinese nationals.


Investors are eligible to apply for EB-5 if they:

  1. make the necessary investment in a commercial enterprise of around 1 million U.S. dollars in the United States; and

  2. create or preserve 10 permanent full-time jobs for qualified U.S. workers.


Family-Based Immigration

If you have immediate family members who hold a green card or U.S. citizenship, you can obtain permanent residency in the United States through family-based immigration. The most common process is the marriage green card which is granted when a U.S. citizen marries a foreign national who sponsors their spouse for permanent residency in the United States. A genuine relationship must be proven through extensive documentation, but this is one of the fastest ways to obtain a green card in the U.S.


The legal team at JLG would like to remind all applicants to carefully consider their options and consult with an experienced immigration attorney before applying for various visas and status changes to prepare quality application materials accurately and efficiently.


If you have any question regarding this topic, please do not hesitate to click here and reach out to us.

 

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Contact marketing@jiaesq.com for more information or to seek permission to reproduce content. This blog is intended for general information purposes only. It does not constitute legal advice. The reader should consult with knowledgeable legal counsel to determine how applicable laws apply to specific facts and situations. Blog posts are based on the most current information at the time they are written. Since it is possible that the laws or other circumstances may have changed since publication, please call us to discuss any action you may be considering as a result of reading this blog.

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