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IMMIGRATION
By:
Michael Phulwani, Esq.,
David H. Nachman, Esq.
and
Rabindra K. Singh, Esq.
ANOTHER H-1B NONIMMIGRANT
VISA LOTTERY IS LOOMING: NOW IS
THE TIME TO START TO THINK ABOUT
YOUR H-1B BACK-UP PLAN? PART-1
INTRODUCTION
Last year, on April 7th, the USCIS
announced that it had received 233,000 H
1B petitions for the Fiscal Year 2016 which
began on October 1st, 2015. The H1B
lottery (also referred as a “random
selection process”) is likely to be
conducted again this year and, in a few
weeks, the USCIS will begin to send out
H1B receipt notices.
With uncertainty looming large as to who
may or may not ʺwin the lotteryʺ or who
may or may not cross the ʹthresholdʹ
hurdle of H1B visas, it is time that H1B
visa hopefuls (and their prospective H1B
employers) start to explore other
nonimmigrant work visa options to allow
them to work and live in the United States
on a temporary basis.
This article is timely in nature and it seeks
to capture and present some of the
possible nonimmigrant work visa options
that may be available to prospective H1B
visa beneficiaries who do not ʺwin the H
1B lotteryʺ this fiscal year and who do not
get counted toward the 2017 Fiscal Year H
1B cap.
DID YOU CONSIDER THE CAP
EXEMPT H1B VISA OPTION?
There are certain categories of capexempt
H1B visas. One such category is for
foreign nationals having (or hoping to
have) an employment offer from an
institution of higher education (or related
or affiliated nonprofit entities), or from a
nonprofit/government research
organization.
To be classified as capexempt, it not
mandatory that a prospective H1B
employee should be employed by the
institution of higher education (or related
or affiliated nonprofit entities), or
nonprofit/governmental research
organization. Aprospective H1B
employee, employed by any employer,
who will perform the majority of his/her
work at the qualifying institutions, could
qualify for the capexempt H1B visa
provided the work performed should
ʺpredominantly furtherʺ the ʺnormal,
primary, or essential purposeʺ of the
qualifying institution.
To illustrate, consider the case of an
Information Technology (IT) company
having a contract with a U.S university for
hiring and placing IT consultants for
developing/customizing university
software. Assuming that IT consultants
hired by the consulting company will
primarily work developing/customizing
the universityʹs software and that the
work will benefit the university in
reaching one of its stated primary or
essential goals; such employees may be
treated as H1B capexempt even though
they will not be employed directly by the
university.
A thorough review of the Memorandum
promulgated by the USCIS that deals with
cap exempt H1B opportunities reflects a
great deal of flexibility. Furthermore, a
thorough analysis needs to be undertaken
to ensure whether the employer is or is not
capexempt. On several occasions, over
the past several years, immigration
attorneys at the Nachman Phulwani
Zimovcak (NPZ) Law Group have been
extremely successful in obtaining cap
exempt H1B visas for their clients.
CONSIDER OTHER PROFESSIONAL
AND SPECIALTY OCCUPATION
WORK VISA CLASSIFICATIONS: TN,
H1B1 AND E3 VISAS.
There are three nonimmigrant visa
categories quite similar to H1B visas that
are designated for temporary professional
workers from specific countries. These
visas are based upon specific trade
agreements that foreign nations have
signed with the United States.
The ʹH1B1ʹ visa program is designed
specifically for the nationals of Chile and
Singapore. Up to 6,800 visas (1,400 visas
for the nationals of Chile, and 5,400 visas
for the nationals of Singapore) are set
aside from the H1B cap of 65,000 during
each fiscal year for the H1B1 program.
Additionally, the Canadian and Mexican
temporary professional workers may
explore the potential option of obtaining
TN classification.
The regulations specify various categories
of professions as well as the minimum
qualifications for each profession that are
covered by Appendix 1603.D.1 to Annex
1603 of North American Free Trade
Agreement (NAFTA). In addition,
nationals of the Commonwealth of
Australia may qualify for E3 temporary
work visas. Like the H1B1, E3 visas are
subject to an annual cap of 10,500 per
Fiscal Year.
Occupationally, H1B1, TN and E3 mirror
the H1B visa in that the foreign worker
must be employed in a specialty
occupation (defined loosely as
ʺprofessionalʺ). While both the H1B1 and
E3 require Labor Condition Applications
(LCA) from the Department of Labor
(DOL), the TN visa does not require the
employer to obtain an LCA. However,
unlike the H1B visa, which is a ʺdual
intentʺ visa, none of the abovementioned
categories are ʺdual intentʺ.
In simple terms, while a foreign national
employed in valid H1B status can pursue
employedbased immigrant visa
(commonly referred as employedbased
ʺGreen Cardʺ), foreign nationals employed
on H1B1, TN or E3 lack this advantage.
However, foreign nationals employed in
these categories can pursue their
employmentbased Green Card by
changing their status to another
nonimmigrant visa category such as H1B,
L1, etc., which recognizes dual intent.
The H1B1, TN and E3 are not
classifications for everyone. They are
specific to certain geographic areas in the
world. Nevertheless, the immigration
lawyers at the NPZ Law Group continue
to find that individuals have immigrated
to Australia and/or Canada (or other
countries) and obtained their Citizenship
there. If this is the case then this may open
the door to a foreign national to live and
work in the United States using another
work visa. As they say, we should aim to
leave ʺno stone unturnedʺ.
CONSIDER ANOTHER H1B
WORKAROUND: THE E1 TREATY
TRADER AND THE E2 TREATY
INVESTOR VISAS.
A foreign national may qualify for an E
visa depending upon what country he/she
is from. There are certain countries in the
world that have a specific type of treaty or
agreement with the U.S. The most
common of these agreements or treaties is
referred to as a Bilateral Investment Treaty
(BIT), a Free Trade Agreement (FTA), or a
Treaty of Friendship, Commerce and
Navigation (FCN) with the United States.
There are two types of E visas: Treaty
Trader visa (E1) and Treaty Investor visa
(E2). Nationals of a foreign country
having FTAmay qualify for both an E1
and E2 visa, while BIT allows only for an
E2 visa.
For an E1 visa, a foreign national entering
the United States is required to carry on
substantial trade that is international in
scope, principally between U.S. and the
foreign country. The E2 visa, on the other
hand, requires the foreign national to
develop and direct the operations of an
enterprise in which the foreign national
has invested, or is actively in the process of
investing, a substantial amount of capital.
The enterprise must be a bona fide
enterprise. Further, a ʺkey employeeʺ,
including the executives and supervisors,
or persons whose services are ʺessential to
the efficient operation of the enterpriseʺ
may qualify for an E1/E2 visa depending
upon the bilateral agreement between the
foreign country and the United States.
To Be Continued. . .
