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Visa Options for Some Who Missed this Year’s H-1B Cap

By: Immigration Law Associates, P.C.

Published: Monday, April 14, 2014

On April 10th USCIS announced that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2015 as well as the limit of 20,000 H-1B petitions filed under the advanced degree exemption. In total USCIS received about 172,500 H-1B petitions. For those individuals who were not selected in the H-1B lottery, there may be other options that will allow them to pursue training or employment in the United States. For example, students who are completing their initial 12 months of OPT and have graduated from certain degree programs in science, technology, engineering or mathematics (STEM fields) may be eligible for a one-time OPT extension enabling them to work for an additional 17 months. Regular OPT and the STEM extension are similar in several ways:

  • Employment must be directly related to the student’s degree program. It is the student’s responsibility to ensure that his or her employment conforms to this requirement.
  • Students are required to notify the DSO of any change to their employment.
  • Students may run their own businesses, work as independent contractors, work for multiple employers or find employment through a staffing agency.
  • Employment can be part-time as long as it averages at least 20 hours per week every month.
  • There is a limit to the length of time a student may be unemployed. For regular OPT, the limit is 90 days. Those with a STEM extension are allowed an additional 30 days.

For those not eligible to a STEM extension, the J-1 visa may be an option. The J-1 classification allows foreign nationals to visit the United States as exchange visitors, in order to receive training or participate in internships, among other programs offered by sponsors designated by the Department of State (DOS). The foreign national must document his or her nonimmigrant intent, and, in order to emphasize the importance of ties abroad, J-1 trainee or intern status requires current enrollment in or prior completion of a qualifying foreign university degree and/or foreign employment experience. A J-1 program may be valid for up to 18 months for trainees and up to 12 months for interns. Dependent spouses and children of J-1 exchange visitors hold J-2 status and are eligible to apply for employment authorization, provided that the employment is not necessary to support the principal exchange visitor.

A lesser-known option is the H-3 nonimmigrant visa, allowing foreign nationals to participate in a training program with specific organization. The H-3 may be granted for up to two years and there is no cap on the number of H-3 petitions granted each year. Regulations specifically prohibit the training program from being “designed primarily to provide productive employment.” However, some employment will be permitted if it is incidental and necessary to the training. Furthermore, the proposed training must not be available in the trainee's own country, but must benefit the trainee in pursuing a career outside the United States. The H-3 visa is particularly applicable to programs involving management training for multinational companies, programs allowing the nonimmigrant to gain further exposure to a company’s business with the goal of increasing business opportunities abroad, and training of joint venture partners to enable them to establish a similar venture in their own country. As with the H-1B, the spouse and minor children of an H-3 trainee are entitled to H-4 status.

For those who have funds and are interested in opening a business in the United States, the E-2 visa, also known as treaty investor visa, is a great option. In many cases, an E-2 visa can be granted to an individual who intends to develop and direct the operations of an enterprise in which he or she has invested, or of an enterprise in which he or she is actively in the process of investing a substantial amount of capital. A foreign national may also qualify for E-2 status if he or she is an employee of a treaty investor, holds the same nationality as the foreign investor/employer and seeks admission to the U.S. to engage in duties that require special qualifications (either executive, managerial, supervisory or "essential" skills) that are essential to the operation of the enterprise. E-2 visa holders are initially granted a period of admission for two years with an unlimited number of two-year extensions of status.

Finally, for those foreign nationals not eligible for any other visa classification, returning to school to pursue another degree may be the only option. But before such a decision is made, consulting with an experienced immigration attorney is strongly recommended to make sure that no other alternatives are available.


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