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  • Article: 5 Great Options if You Weren’t Selected in the H-1B Lottery By Shilpa Malik, Esq.

    5 Great Options if You Weren’t Selected in the H-1B Lottery

    by


    Each year, thousands of foreign nationals send in their petitions for the H-1B visa. It’s a highly competitive visa that allows holders to work in the U.S. for up to six years and pursue a green card.

    However, just because you’re qualified, does not mean that you will be selected.

    You gather the documents you need, find a sponsoring employer, have your petition filed, and even hire an immigration attorney. You do everything right, but you don’t get selected in the H-1B lottery. In the end, the lottery is just random selection.

    During the 2018 H-1B lottery, over 199,000 petitions were filed with the USCIS. Of those, only 65,000 were selected for the regular cap with an additional 20,000 being selected for the advanced degree cap. This means that, for those filing for the regular cap, there was only a 36% chance of being selected. After all that work, it comes down to chance.

    So what now? Do you give up? Do you wait another year for the next filing season? Instead, we’re here to tell you that, depending on your qualifications, you may be eligible for a different nonimmigrant work visa.

    This article isn’t just for those who weren’t selected. Some may be looking for an alternative to the H-1B due to the possibility of changes to the requirements in this political climate. If that’s you, this list is for you.

    What Are My Other Options?

    The H-1B, while a very popular and advantageous visa, is hardly the only option available to foreign nationals looking to work in the U.S. Take a look at some of these little-known alternatives that may be perfect for your situation:

    #1: L-1B
    The L-1 visa allows multinational companies to transfer their employees from a location abroad to an office, affiliate, branch, or subsidiary in the U.S. However, it doesn’t allow for just any employees to be transferred. In order to qualify, you have to be either a:

    • Manager: L-1A
    • Executive: L-1A
    • Employee with specialized knowledge: L-1B

    The most accessible of these groups is the third, as more people qualify for this category. However, you can’t simply apply to a multinational company and automatically become eligible for the visa. One of the major drawbacks is that you must have been working in your position for at least one year in the three years leading up to your petition.

    The question is, do you want to wait another year to have another 32% chance at getting an H-1B, or would you rather spend that year working for a company that will sponsor you for an L-1B?

    Once you get your L-1B, it will be initially granted for 3 years with an opportunity to extend it 2 more to a total of 5 years. This also serves as a drawback since the H-1B allows holders to stay for up to six years.

    #2: J-1
    For those that have a specific job, you may want to consider coming to the U.S. as an exchange visitor under the J-1 visa. This option uses a system of pre-approved programs chosen by the Department of State that act as sponsors for applicants from a small variety of occupations. These include:

    • Doctors
    • Teachers
    • Professors
    • Research assistants
    • Trainees
    • Nannies
    • Camp Counselors

    Keep in mind that these are only the most popular occupations. Work with an immigration attorney to judge if your job could also qualify for a J-1. If your occupation does qualify, then this may be a great alternative to the H-1B.

    However, like many visas, it does have its limitations. Keep these in mind as you consider the J-1 as a viable alternative to the H-1B.

    Firstly, the period of stay depends on your program. Some programs allow visa holders to stay for up to seven years while others only last one year.

    Secondly, unlike the H-1B, the J-1 visa is not considered “dual intent” by the USCIS. This means that you will not be able to pursue your green card while under J-1 status and you must intend to return to your home country after your period of stay.

    Thirdly, once you return to your home country after spending time in the U.S. under J-1 status, you will most likely have to spend two years there before returning to the U.S. under any other visa. However, this rule can be bypassed with a waiver.

    #3: H-4
    The H-4 is actually a visa for the dependents or spouses of H-1B holders. If you and your spouse both applied for the H-1B and only one was selected, the other can enter the U.S. under H-4 status.

    The only problem is, H-4 visa holders are not allowed to work legally in the U.S.

    Not without an Employment Authorization Document (EAD) card at least. In 2015, the USCIS changed the ruling to extend the opportunity to work to H-4 holders if they had an EAD card. To get this, your H-1B spouse must have an approved green card petition submitted with the USCIS.

    Fortunately, there are no restrictions as to the type of green card. There are also no restrictions as to the kind of work you can do. It doesn’t matter whether it’s full time or part time. However, if you are a dependent of an H-1B holder and you are under the age of 18, you will not be eligible for an EAD card.

    #4: E-1/E-2
    The E class visas are great alternatives if you’re looking to strike out on your own and start a business in the U.S. While the H-1B does allow for holders to start businesses, it does not allow them to work for their business. The E visas, on the other hand, encourage entrepreneurs to work and invest in new enterprises.

    There are two main classifications for the E visa:
    E-1 visa for treaty traders
    In order to qualify for the E-1 visa, you need to first be a national of a country that maintains a treaty of trade and commerce with the United States. The Department of State keeps a list of all treaty countries on their website for reference.

    You also must plan to perform “substantial” or “principle” trade in the U.S. Substantial trade means that your trade is enough to ensure a continuous flow of goods and services during your stay. Principle trade means that at least half of your trade is between your treaty country and the U.S.

    The E-1 visa is not limited to just the treaty trader. If you are an employee of an E-1 trader, you may also qualify for the same visa. Here are the requirements:
    • You have to qualify as an employee by the law of the state you wish to work in.
    • You must be from the same treaty country as your employer
    • You will need to prove that you are essential to your employer’s trade

    E-2 visa for treaty investors
    As the name implies, the E-2 is very similar to the E-1 in that all applicants must be from a treaty country in order to be eligible. The difference is that while E-1 holders carry on a trade, E-2 holders invest capital in a U.S. enterprise.

    As an E-2 applicant, your reason for coming to the U.S. must be to contribute a substantial investment into a bona fide new or existing enterprise. The key here is to prove that your investment is substantial rather than marginal.

    The investment amount is not quantified by the USCIS, but it is defined as being considered substantial in comparison to the value of the enterprise. It needs to be apparent that you are wholly committed to developing the business through your funds. Typically, the appropriate amount depends on how expensive the enterprise is.

    For example, Javier wants to get his E-2 by investing in a small manufacturing company in the U.S. that is worth $600,000. Javier might need to invest up to 50% of this amount in order to prove that his investment is bona fide. In contrast, if he were interested in investing in a large hotel chain worth several million dollars, the required percentage may be less.

    Because there are no numerical rules to the investment, it is even more important to find an immigration attorney who can help you create a solid case.

    The main benefit of both the E-1 and E-2 visas is that holders can stay in the U.S. for as long as their enterprise or trade requires it. Both visas will be initially issued for a period of two years. However, you will be able to apply for a two-year extension an unlimited number of times.

    #5 Green Card
    Lastly, if you were not selected in the H-1B lottery, you can choose to forgo the nonimmigrant visas altogether and apply for a green card. Keep in mind that almost all green card categories require that you have a job offer from a U.S. employer and go through the Labor Certification process. The only exceptions to this rule are the the EB-1A for extraordinary achievement, the EB-2 with a National Interest Waiver, and the EB-5 for investors.

    Here are the most popular employment-based green cards by preference level:

    EB-1
    This green card is for people with extraordinary achievement, outstanding researchers and professors, and multinational managers and executives.

    This is a very prestigious green card which makes it difficult to qualify. Here is a basic rundown of each category

    • Extraordinary achievement can be proven through a number of things including international awards, a large salary, or exclusive memberships. You immigration attorney can help you identify evidence that makes you eligible.
    • Outstanding researchers and professors must show that they have international recognition and at least 3 years of experience in their field.
    • Multinational managers and executives need to have worked for their employer for one year in the previous 3 years before filing.

    If you petitioned for an H-1B visa and weren’t selected in the lottery, then the best option for you in this first preference level is the EB-1A for extraordinary achievement. Here is a quick list of the things you could submit to the USCIS to prove your achievements.

    You can either have a renowned international award such as a Nobel Prize or submit evidence of three of the following:

    • Smaller, less prestigious prizes that demonstrate your ability
    • Membership in a distinguished organization in your field
    • Material that has been published about you in a trade journal or publication
    • Having acted as a judge of the work of your peers
    • Significant contributions to your field
    • Scholarly articles that you have authored
    • Exhibition of your work
    • Having a critical role in a reputable association
    • Having a large salary that demonstrates your ability
    • Demonstrable commercial success in your field

    EB-2
    The EB-2 green card is for people with exceptional ability, advanced degree holders, and those who qualify for a National Interest Waiver.

    • According to the USCIS, “Exceptional ability” means that you have a “degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business”. This can be proven through a specialized degree, 10 years of experience, or substantial salary. Work with your immigration attorney to learn what evidence qualifies you.
    • As for the advanced degree, your job must require at least a master’s degree in order for you to qualify. In lieu of an advanced degree, you can have a bachelor’s degree and 5 years of experience.
    • The National Interest Waiver is a program that allows EB-2 applicants to self-petition without the need to find a sponsoring employer and go through the PERM Labor Certification process.

    Because the last option is the most likely alternative for anyone who was not selected in the H-1B lottery, we will focus on the National Interest Waiver. To prove that your work or enterprise is in that national interest, you will need to exhibit three things:

    • That your work will have a substantial impact on the U.S. economy, business, society, culture, education, health, technology, or science.
    • That you are able to make the enterprise succeed through your education, past successes, and business plans.
    • That the U.S. would benefit more from waiving the job offer requirement than enforcing it.

    EB-5
    The last popular green card category is for investors who commit at least $500,000 to a business in a rural area or area with high unemployment. For all other areas, the investment requirement is at least $1 million.

    You will need to be in possession of the funds that you intend to invest and you will also need to prove that you acquired the funds legally. Earned or gifted money is acceptable in this scenario. In order to qualify, you will need to have one of the following enterprises:

    • Partnership
    • Corporation
    • Joint Venture
    • Sole Proprietorship
    • Business Trust
    • Holding Company
    • Publicly or privately owned entity.

    The USCIS will want to see that your enterprise has a potential for success, a positive impact on the economy, and job creation.

    Conclusion

    As you can see, the H-1B is far from the only path to working in the U.S. There is a visa for almost every immigration situation, allowing more and more people to come and work in the U.S. If you were not selected in the 2018 H-1B lottery or simply want to find a more reliable alternative, you may be able to find an option tailored to your case.

    Work alongside your immigration attorney to learn if your experience, education, and job situation afford you the opportunity to take advantage of any of the above alternatives to the H-1B visa.


    About The Author

    Shilpa Malik, Esq. Shilpa Malik, Esq. worked as a Senior Attorney at prominent New York City based law firms where she practiced Immigration Law exclusively prior to founding her own law firm. She has handled a myriad of Immigration cases and issues including Family-Based cases, Employment Based cases, Consular Processing, CSPA, Removal Representation and Defense. Attorney Malik has participated in several community outreach programs and was an Advocate with the Immigrants Rights Clinic at the New York University School of Law.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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