H-1B Petition Pitfalls — And How International Students Can Avoid Them

ALTERNATIVES TO THE H-1B BRIDGE

Many students are rightfully nervous about betting their future career in the U.S. on the coin flip chances of obtaining an H-1B visa after investing a significant sum in their U.S. education. More and more students are seeking to take matters into their own hands by making themselves eligible for another visa category. With advanced planning, students can bypass the H-1B category altogether, or create a potential fallback option if the H-1B bridge doesn’t work out. 

E-2 Treaty Investor Visas

E-2 is a category for investors who start or purchase a business in the U.S., as well as their executive, managerial and specialized employees. It can be a great fit for start-up founders and certain employees who are from the same country. The E-2 category is only available to citizens of countries who have entered into a treaty with the U.S. (a list which notably does not include China, India, Russia or Brazil, as well as many other countries). The company must be majority owned by citizens from a treaty country, and any investors or employees seeking an E-2 visa must have the same nationality as the majority owners.

Obtaining an E-2 visa in connection with a start-up company requires a substantial investment in the company. How much? It depends.

You must provide a business plan that shows that the company will have enough funds to get off the ground and operate successfully. For companies that can operate with few expenses, this may mean an investment as small as a few thousand dollars. For companies that require several employees or significant assets to operate successfully, the required investment amount will be much greater. Ultimately, you will need to convince an officer at an embassy or consulate that the company is a bona fide commercial enterprise with a bright financial outlook and the ability to create jobs in the U.S.

E-2 Pros & Cons

Pro

Con

Flexibility. If you want to work on various gigs as an independent contractor, you can craft your company description broad enough to accommodate anything you plan on doing. You don’t have to go through USCIS. You can apply for an E-2 visa by submitting a business plan and other evidence of your business to a U.S. embassy or consulate. There is no requirement to file anything with USCIS. No limit on status. You can receive 2 years of E-2 status each time you enter the U.S. with an E-2 visa. E-2 visas are generally issued for 5 years, however, the visa validity period is shorter for citizens from some countries. There is no cap on the number of times you can renew an E-2 visa and there is no maximum number of years that you can remain in E-2 status. Spouse employment authorization. If you are married, your spouse can apply for employment authorization that will allow him/her to work in any type of position.

Significant investment. You must irrevocably commit a significant amount of money in your business before you can obtain an E-2 visa. Cash sitting in a company account is not sufficient. You must have already spent a significant amount or you must have contracts or other commitments to spend a significant amount. Employees. You must have additional employees or have projections showing that you will soon hire additional employees. E-2 businesses must create jobs and cannot be created just to provide income to the founder. Ownership. The company must remain at least 50% owned by you and/or others that share your nationality. This can be a deal breaker for many start-ups that must give up equity to secure investment. When the company loses 50% ownership by citizens of your home country, you will lose your E-2 status and your visa will no longer be valid.

O-1 – Individuals with Extraordinary Ability or Achievement

Another alternative to the H-1B bridge is an O-1 extraordinary ability visa. This category is for foreign nationals with extraordinary ability in a specific field of endeavor demonstrated by national or international acclaim. Perhaps you are thinking, I have neither extraordinary ability nor acclaim, so this category is not for me. Before you skip over this section, you should know that there are many young professionals that have qualified for this category by strategically building their resume to fit the O-1 criteria.

USCIS does not have the bandwidth and expertise to determine who has extraordinary ability or acclaim in every field of endeavor from botany to choreography to entrepreneurship. So USCIS looks at a number of factors to determine who has extraordinary ability, such as receipt of merit-based scholarships or awards, membership in organizations that require members to demonstrate their merit within a particular field, publications and published material about you. The O-1 categories are designed to create an objective methodology. However, there is a great deal of subjectivity within the different categories, leaving room for persuasive arguments as to why a foreign national has extraordinary ability.

O-1 Pros & Cons

Pro

Con

No limit on status. You can receive 3 years of O-1 status on the basis of your initial O-1 petition and then you can renew for 1 year at a time. There is no cap on the number of times you can extend your O-1 status there is no maximum number of years that you can remain in O-1 status. Resume building. Foreign nationals in MBA programs or who have recently graduated may find that they can easily bolster their eligibility for an O-1 visa at the same time that they are building their resumes for success within their field. For example, an MBA student aiming for a career on Wall Street can kill two birds with one stone by writing articles for scholarly journals or online publications and by taking a high salary position at an investment firm after graduation.

Documentation. O-1 petitions require a significant amount of evidence, including a written advisory opinion from a peer group within your field of expertise (if one exists) and testimonials from other experts or prominent individuals within your field. No spouse employment authorization. Spouses of foreign nationals in O-1 status can obtain O-3 status to remain in the U.S., but cannot work in O-3 status.

L-1 – Intracompany Transferee 

L-1 status is for foreign nationals who work for an employer abroad (at least one year out of the last three) and then transfer to work for the same employer (or a parent, subsidiary, affiliate or branch of the same employer) in the U.S. To qualify, a foreign national must have worked for the employer abroad in an executive, managerial or specialized knowledge position (i.e., a position requiring knowledge or skills that set the foreign national apart from others within the industry and others within the employer’s global organization). The U.S. role must also be an executive, managerial or specialized knowledge position.

If your career path will have an international focus and you expect to spend at least a year working outside the U.S., an L-1 visa may become an option for you. If you strike out in the H-1B lottery, or your petition is selected and denied, you may wish to discuss with your employer whether it would be possible to transfer outside the U.S. for a year and then return in L-1 status. 

If you work for a large international company or a company that regularly transfers foreign nationals to the U.S., you may be able to apply for a blanket L-1 visa at a U.S. embassy or consulate. This option allows you to skip filing a petition with USCIS, which holds L-1 petitions to a very high standard. While H-1B, E-2 and O-1 statuses have each become harder to obtain in recent years, blanket L-1 visa processing through embassies and consulates has remained a safe and reliable path to the U.S. for those who qualify.  However, changes may be on the horizon as the State Department has indicated that it is in the process of developing new policies related to blanket L visa eligibility.

L-1 Pros & Cons

Pro

Con

Blanket L option avoids USCIS. If you work for a large international company or a company that regularly transfers foreign nationals to the U.S., you may be able to apply for a blanket L-1 visa at a U.S. embassy or consulate rather than having your employer submit a petition to USCIS. Blanket L ease and predictability. Blanket L-1 visa processing through most embassies and consulates is a safe and reliable path to the U.S. for those who qualify. 5/7 years status. If you are an executive or manager in the U.S., you can obtain up to 7 years of total L-1A status in the U.S. Specialized knowledge employees can obtain up to 5 years of total L-1 B status. Spouse employment authorization. If you are married, your spouse can apply for employment authorization that will allow him/her to work in any type of position.

Working abroad. You must work at least 1 year out of the last 3 years outside the U.S. in order to qualify for L-1 status. Must remain with employer. An L-1 visa only allows you to work for the same employer that you worked for abroad (or a parent, subsidiary, affiliate or branch). You cannot transfer to another company as you can with an H-1B. Riskier to apply with USCIS or in India. Applying through USCIS is more expensive and riskier because USCIS scrutinizes L-1 petitions more than embassies and consulates. Blanket L-1 petitions submitted in India are also scrutinized heavily and are denied at a higher rate than in other countries.

CONCLUSION

If you are an international student or recent graduate hoping to remain and work in the U.S., you should start planning early to obtain a work visa.  Given recent and unprecedented challenges to the H-1B program, you should consider other visa categories that may be available to you and prepare (or at least make a back-up plan) to make yourself eligible for another visa category. 

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Nathan Grow is an immigration attorney at Wolfsdorf Rosenthal.

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