By Attorneys Gregory J. Boult & Nancy E. Miller

Living and working in the United States is a dream held by many.  One very popular means of reaching this dream is the H-1B visa.  Unfortunately, not everyone who applies for an H-1B visa is successful.  There are more applicants than there are visas.  When the H-1B Cap is reached, no further applications are accepted for that fiscal year.  As a result, many never get to apply.  Others, whose applications are accepted for filing are denied for lack of eligibility. However, denial of an H-1B should not deter an individual from seeking legal status in the United States.  Other viable options may exist, and potential alternatives should always be fully explored with an experienced and knowledgeable immigration attorney.

Many individuals qualify for other nonimmigrant visas which will allow them to live and work in the United States.  Common examples include E, L, and TN visas.

The E visa category includes E-1 (treaty traders) and E-2 (treaty investors) visas.  Controlled by treaties between the United States and select foreign governments, individuals hailing from certain countries can seek nonimmigrant visas to live and work in the United States.  An individual may be eligible for an E-1 visa if his or her company is engaged in ‘substantial trade’ with the United States.  Substantial trade is normally defined as at least fifty percent of all respective international trade.  E-2 visas are available to certain individuals who invest in an ongoing business venture in the United States.  While there is technically no set limit for the amount of money which must be invested, the larger the amount of the prospective investment the more likely that an E-2 visa will prove to be a viable option.

The option of pursuing an L visa is also an excellent alternative for some individuals.  An L visa may be available to certain individuals employed abroad who will come to the United States to work for a branch, affiliate, subsidiary, or the parent organization of their overseas company.  In order to qualify for an L visa, an individual must be coming to the United States to work in the capacity of a manager, executive, or an individual with specialized knowledge.
Another option, which is only available to Canadian and Mexican nationals, is a TN visa.  A TN visa bears many similarities to an H-1B visa, however it distinguishes itself in two regards.  First, it is the product of the North American Free Trade Agreement.  Thus, it is only available to nationals of Canada and Mexico.  Second, while being available to professionals, it more broadly defines who qualifies as a professional when compared to the definition utilized in the H-1B context.  As a result, many individuals who would not be deemed qualified for H-1B status, would be eligible for TN visas.

Lawful permanent resident status through a labor certification / employment-based immigrant visa petition is another alternative to H-1B status.  One of the most notable distinguishing factors from H-1B status is that this option leads directly to lawful permanent residence, rather than the temporary nonimmigrant status afforded under H-1B status.  However, the process of obtaining an employment-based immigrant visa can take years.  Exactly how long the process will take is normally directly related to an individual’s proposed position, education, and relevant training and work experience.  The long waits often associated with this process frequently deter some individuals from pursuing this avenue as an initial means of legally living and working in the United States.  However, not all individuals are subject to the long waiting periods associated with this pathway.  Once the option of H-1B status has been eliminated, an employment-based immigrant visa petition is an alternative course of action which should be carefully considered.

Many factors, although some relatively minor, differentiate the forgoing types of immigrant and nonimmigrant visas.  As a result, each individual case is unique; and these may not be the only options available to any given individual.  For those who could not even get a foot in the door because of the H-1B Cap, the best option may simply be to wait and try again.  However, for those whose H-1B petition was denied, other viable options may still remain.  And perhaps, even more importantly, some of these alternative options may prove to better fits in the long run given unique facts and circumstances.  An experienced and knowledgeable immigration attorney will be able to review all of the relevant facts and recommend the most appropriate course of action moving forward.  While an H-1B denial may prove to be the end of one specific process, it should not be viewed as the end of the overall process itself.  Options almost always remain which should be thoroughly explored.

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