Other Alternatives to H-1B Visa

The initial H-1B random selection process was completed in late March.  USCIS has not officially released the number of H-1B registrations and selection total.  However, based on unofficial estimates, the number of H-1B applicants continue to be sky-high.  This year, USCIS implemented a new policy which prohibits the entering of multiple registrations for the same employee, which should have improved the chances for selection.  Still, based on statistics gathered so far, the overall selection rate is still undesirable.

For the unselected foreign students and workers, they must now face the harsh reality of their future. This article presents some alternatives that they may consider based on their background and qualifications:

Practical Training Employment

For some foreign students with a STEM degree, continue working with their STEM OPT employment authorization may be the best option. While waiting for the next year's H-1B lottery, they may continue working for their employers.  They must work for an employer who is e-Verified.  Some universities offer internship an co-op employment opportunities.  Enrolled F-1 students may participate in these programs through Curriculum Practical Training (CPT) authorization.

Extraordinary Ability O-1 Work Visa

For individuals with outstanding qualifications or a strong STEM background, the O-1 extraordinary ability visa may be an option. The O-1 visa requires substantial proof of one's qualifications and achievements. O-1 is a temporary work visa approved for up to 3 years each time, and can be extended indefinitely.  Please see our previous article for details of the O-1 visa.

Employer-sponsored Green Card

Rather than relying only on H-1B, one may also consider applying for their green card directly, if their employer is ready to start the application process. There is no requirement that one must be in H-1B status first before applying for their permanent resident status.  For applicants born in countries with available visa numbers, their green cards could be approved relatively quickly.  However, they must maintain their lawful status until they are able to submit their final green card application.

Self-Petitioned Green Card

Without sponsorship by a U.S. employer, a foreign worker may also file a self-petition for their green card if qualified.  For example, they may apply for a green card under the EB-2 visa category with a National Interest Waiver (NIW).  The applicant must prove that their immigration will serve an important interest of the United States.  USCIS has encouraged qualified individuals with a strong STEM background to apply.  Please see our previous article for details of an NIW application. 

EB-1A Extraordinary Ability petition can also be filed by a foreign applicant without employer sponsorship.  It is similar to the O-1 work visa with even more stringent requirements.  One must submit evidence to demonstrate that they have risen to the very top of their field of endeavor. Proof of sustainted national or international acclaim is also required.  Not only scientists or researchers can submit EB-1A petitions, professionals in other fields such as art and design, business, education, health care, engineering, etc., may also qualify.  When in doubt, one should obtain a professional evaluation of their qualifications. 

E-2 Visa

For entrepreneurs who are interested in starting up a small business in the U.S., the E-2 Treaty Investor visa may be the answer.  Their spouses and children may also live, work and study in the U.S. To apply for an E-2 visa, one's country of citizenship (not birth) must have a commerce treaty with the U.S.  Most European and Asian countries are eligible.  Please see our previous article for details. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

E-2 Visa for Taiwanese Starting a Business in the U.S.

 

Photo by Belle Co 

Taiwanese citizens who wish to live and work in the United States should consider applying for an E-2 visa.  There are many advantages to holding an E-2 visa. It allows the visa holder to live and work in the U.S. indefinitely.  Their family members can also work and study here. They can apply for driver's licenses and social security numbers.  Hence, an E-2 visa functions more or less like a green card in many respects.  

Who is eligible to apply for an E-2 visa?

The E-2 Treaty Investor visa is for citizens of countries with which the U.S. maintains treaties of commerce and navigation.  Taiwan is one of the countries with such a treaty with America.  The investor must be a Taiwanese citizen.  Certain employees with supervisor responsibilities or specialized skills of a Taiwanese company may also be eligible, if at least 50 percent of the business is owned by Taiwanese citizens.  The E-2 visa is essentially a visa to start and operate a business in the U.S. 

Basic requirements for an E-2 visa?

The precise legal requirements for E-2 visa are rather technical. But generally speaking, there are several major requirements.  First, the investment must be substantial, and the funds have to be real and irrevocable.  A substantial investment here does not mean millions of dollars of funding.  It merely means that the investment is reasonable for the type of business to get started, and is sufficient to ensure successful operation of the business. However, the investor must be in the process of investing the funds or ready to invest once the E-2 visa is approved. 

The business at issue must be a real operating enterprise.  Speculative or empty business ideas do not qualify. A comprehensive, detailed business plan that can be implemented immediately must be provided to support an E-2 visa application.  

Further, the investment may not be marginal, meaning that it must be not be a business that can only financially support the investor and his family. The business enterprise must have the capacity to make a significant economic contribution. For example, the business will branch out to multiple locations or employ several U.S. workers in the near future. 

Finally, it is important to note that the E-2 visa is not for passive investment. The investor or its employees must be coming to the United States to develop and direct the enterprise. 

How to obtain an E-2 Visa?

The preferred way to apply for an E-2 visa in Taiwan is through the American Institute in Taiwan (AIT).  One would have to complete several comprehensive application forms with substantial supporting documentation regarding the treaty investment enterprise, source of funding, proof of irrevocable investment, visa applicant's professional and personal information, etc.  As mentioned, a detailed and concrete business plan must also be provided to the visa officer.  The applicant must attend a visa interview before an E-2 visa can be issued.

How long does an E-2 visa last? 

The initial visa approval is usually good for five years.  As long as the applicant and the business continue to meet the legal requirements, extension of status can be granted from 2 to 5 years with no limits.  Applicants and their family members may travel internationally with the E-2 visa without restrictions.

Conclusion

The E-2 visa is an excellent tool for foreign nationals to work and live in the U.S.  The investments required are substantially less than the EB-5 investment visa, and so are the risks involved.  Investors are free to choose a variety of business to invest in including professional services, personal services, retail business, franchise business, etc.  Not all countries are eligible for the E-2 visa. Unlike mainland Chinese citizens, Taiwanese are eligible for the E-2 visa and should take advantage of it.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Not Selected in the H1B Lottery; A Few Viable Options

We received text messages from USCIS regarding some updates of our H-1B CAP cases.  Excited and hopeful, I logged in to our myUSCIS account only to find some non-selection notices for the pending H-1B registrations. This is not exactly surprising, as we've already predicted that there might not be a second drawing on account of the larger number of selections in the first drawing. Still, we feel the disappointment of not only our clients, but also thousands of other H-1B applicants and employers.  Today, USCIS made the formal announcement that the H-1B CAP for FY 2023 has been reached.  No 2nd or 3rd drawing.  

For the unselected foreign students and workers, they must now face the harsh reality of their future. The following are some alternatives that they may consider based on their background and qualifications:

STEM OPT

For some foreign students with a STEM degree, continue working with their STEM OPT employment authorization may be the best option. While waiting for the next year's H-1B lottery, they may continue working for their employers.

O-1 Visa
For individuals with a strong STEM background, the O-1 extraordinary ability visa may be an option. The O-1 visa requires substantial proof of one's qualifications and achievements. Please see our previous article for details of the O-1 visa.

Green Card through Labor Certification
Rather than relying only on H-1B, one may also consider applying for his green card directly, if there is an employer who is willing to sponsor. There is no requirement that one must be in H-1B status first before applying for their permanent resident status.  For applicants born in under-subscribed countries, their green cards could be approved relatively quickly. 

Green Card with NIW
Without sponsorship by a U.S. employer, a foreign worker may also file a self-petition for her green card with a national interest waiver (NIW).  The applicant must prove that her immigration will serve an important interest of the United States.  USCIS has encouraged qualified individuals with a strong STEM background to apply.  Please see our previous article for details of an NIW application. 

E-2 Visa
For entrepreneurs who are interested in starting up a small business in the U.S., the E-2 Treaty Investor visa may be the answer.  Their spouses and children may also live, work and study in the U.S. To apply for an E-2 visa, one's country of citizenship (not birth) must have a commerce treaty with the U.S.  Most European and Asian countries are eligible.  Please see our previous article for details. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS Terminates E-1 and E-2 Treaty Trader and Investor Programs for Iranians

USCIS made the following announcement today.  Note: The announcement does not affect the E-1 / E-2 visa programs of other eligible treaty countries. 

USCIS today announced that, due to the Oct. 3, 2018, termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran, Iranian nationals are no longer eligible for E-1 treaty trader and E-2 treaty investor changes or extensions of status based on the treaty.

The E-1 and E-2 nonimmigrant visa classifications allow an alien of a treaty country to be admitted to the United States for the purposes of engaging in international trade or investing a substantial amount of capital into a U.S. business.

E-1 and E-2 nonimmigrant visas are based on trade and investment treaties or specific legislation providing for reciprocal treatment of the respective countries’ nationals. The existence of a qualifying treaty or authorizing legislation is therefore a threshold requirement for issuing an E visa.

Due to the termination of the treaty, USCIS will send Notices of Intent to Deny to affected applicants who filed applications after the Department of State’s Oct. 3, 2018, announcement. Iranians currently holding and properly maintaining E-1 or E-2 status may remain in the U.S. until their current status expires

H-1B Rejected? Maybe E-2 Visa is the Answer

Has your H-1B visa application been delayed or denied recently?  Maybe you did not even get selected in the H-1B visa lottery?  Perhaps your request to change or extend your non-immigrant status was rejected?  If so, you are not alone.  The Trump Administration's Executive Order on Buy American Hire American has made it more difficult for foreigners to apply for visas to enter the U.S.  

You may also consider the E-2 Treaty Investor (E-2) visa if you intend to invest or work in the U.S.   The E-2 visa is for foreigners to develop and direct the operations of an enterprise in the United States, or to work in the enterprise as an executive, supervisor, or essentially skilled employee.

Advantages of the E-2 Visa

Holders of the E-2 visa can enter, work and live in the United States for as long as their visa status is valid.  Their spouses and children may also live, work and study in the U.S.  Unlike the H-1B visa, E-2 visa does not have an annual visa limitation or a maximum period of employment.  Although the E-2 visa is not an immigrant visa, holders enjoy the most important benefits of green card holders.  Unlike the EB-5 investor immigrant visa, E-2 visa does not require a large sum of investment. 

Eligibility for the E-2 Visa

First, the E-2 Treaty Investor visa is only for citizens of specific countries that the U.S. has a commerce treaty with. Many countries have such trading treaty with the U.S. including most European and Asian countries.  Many South American and African countries are also eligible.  Although China and India are not eligible, their sister countries Taiwan and Pakistan are. It is not the country of birth that controls one's eligibility; it is the country of citizenship. For example, a person born in China or India may apply for E-2 visa if she has become a Canadian citizen later on in life.  

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Other Requirements for the E-2 Visa

An E-2 Treaty Investor visa applicant must show that she is investing a substantial amount of capital in a U.S. business.  A substantial amount of capital does not mean a specific amount, but it needs to demonstrate the investor's commitment to the success of the enterprise. The total costs of starting up such a business is an important factor to be considered. Generally speaking, the lower the startup cost of the enterprise, the higher the investment must be to be considered substantial.

The investment must also be subject to risks of loss. It means that the investor must place her funds in a position that she could actually lose money.  Examples include payments of non-refundable deposits on equipment or inventory.

The E-2 investor must also show that her investment comes from legitimate and lawful sources.  Gifts from family members are okay.  Borrowed funds can also be used as long as they meet certain legal requirements.  

Further, the applicant must show that she is very close to opening a real business in the U.S. Hence, rather than producing only a business plan, there must be proof that the investor is ready to start the business operations as soon as her E-2 visa has been approved.  Such proof may include hiring of employees, purchasing of inventory and leasing of commercial office spaces. 

Finally, the investor must show that the business operations are not only marginally sufficient to support herself and her family.  There must be a detailed and realistic plan to expand the business in the next few years by, for example, hiring additional U.S. employees. 

Qualifications of Visa Applicants

There are two categories of applicants for the E-2 Treaty Investor visa.  The first group includes the individuals who come to develop and direct the operations of the enterprise in the United States. They are generally the actual investors.  Although no general educational or professional qualifications are required for the E-2 visa, an investor must show that she has the required experience and skill-set to develop and direct the operations of the particular enterprise.

The second category of E-2 applicants are those who are coming to work in the enterprise as an executive, supervisor, or essentially skilled employee. Similarly, these applicants must show that they have the requisite executive, supervisory, or essential skills for the position before their E-2 visas can be approved. 

DHS Proposes to Remove International Entrepeneur Rule

The Department of Homeland Security (DHS) is proposing to block foreign entrepreneurs from coming to the U.S. on parole status to create start-up businesses.  On May 29, 2018, DHS published a formal proposal to cancel the International Entrepreneur Rule (IE rule) created in 2017. 

The IE rule was originally formulated during the Obama administration. Its purpose is to encourage international entrepreneurs to start their businesses in the United States. It confers a temporary parole period of 2.5 years during which foreign investors may create and operate start-up businesses in the U.S.  The period can be extended for another 2.5 years if certain conditions are met. The purpose of the IE rule is to provide an opportunity for these new businesses to grow so that they may provide benefits to the public. 

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Now, the DHS is proposing to completely remove the IE rule. It cites reasons of lacking protection for domestic shareholders and too broad an interpretation of "parole". In its proposal to scrape the IE rule, DHS also cites other other visa categories under which international entrepreneurs may apply to bring their start-up to America. 

E-2, EB-2 and EB-5 visas are possible alternatives to the IE rule but are not framed as favorably for entrepreneurs. Each of these visas have specific requirements.  The E-2 visa is only available if a trading treaty exists between the U.S. and the foreigner's nation. The EB-2 immigrant visa has strict eligibility requirements based on education, skills, and achievement.  Further, the EB-2 immigrant visa requires sponsorship by a U.S. employer unless a "national interest waver" is obtained. The adjudication standards for such a waiver are quite high. The other issue with EB-2 is that there is a huge backlog of applicants from certain countries. Larger countries with many applicants like China and India are subject to long waiting times. Entrepreneurs taking this route would therefore face much larger competition and longer waiting times.

The employment-based fifth preference visa is actually intended for entrepreneurs, granting them and their families permanent residence if certain requirements are met.  The EB-5 requirements are investing in domestic business and creating jobs for American workers. The main difference between EB-5 and the IE rule is that the former requires the foreigner to put up with a large sum of investment capital while the latter may receive investment capital form U.S. investors. The EB-5 visa application process is also long and complicated.

The public has 30 days to provide comments to the proposal.  DHS has received thus far 13 IE applications and has not yet approved any application.  These applications may be rejected or denied on the effective date of the new rule or may be granted an opportunity to establish that the applicants are eligible for parole under the traditional parole rule, i.e., for urgent humanitarian reasons or significant public benefits. 

Treaty Trader and Investor Visa (E Visa) Processing Changes in Canada

As of March 1st, 2016, there will be some processing changes regarding the Treaty Trader and Investor Visa (E Visa) program in Canada, according to a 02/29/2016 press release by the Consulate General of the U.S. in Toronto.  While the U.S. Consulate General in Toronto will continue to handle company registrations and offer appointments for E-1 and E-2 visas, the Consulates General in Ottawa, Vancouver, Calgary, and Montreal will begin offering E-1 and E-2 visa appointments for employees of companies with valid registrations and their dependents.

  

E-2 Treaty Investors Visa

The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  Certain qualified employees of the business may also be eligible for this classification. 

Basic Requirements for E-2 Visa

To qualify for an E-2 visa, an applicant must be a national of a treaty country. If the person will be employed and doing business on behalf of a company, the employing company must also be from the same treaty country.  The employing company must be at least 50 percent owned by persons with nationality from the treaty country. These owners must not be lawful permanent residents of the U.S. 

Other requirements include: 1) The investor must possess and control the investment capital; 2) The investment must be invested and subject to risks of loss; 2) The investment must also be "substantial" so that it is enough to ensure that the business will likely to take off successfully; 3) The investment must not be "marginal", meaning that it must generate revenues more than enough to support the livelihood of the investor and his/her family; 4) The investor must actively develop and direct the business  rather than actually doing employees' work.  

Advantages of the E-2 Visa 

The E-2 classification does not require a fixed amount of investment, unlike EB-5 visas.  E-2 admission is generally granted for 2 years, and extensions are possible.

Many countries have trading treaties with the U.S. for E-2 visas including Albania, Argentina, Azerbaijan, Austria, Australia, Bangladesh, Belgium, Bolivia, Bulgari, Cameroon, Canada, Colombia, Congo, Denmark, Ecuador, Egypt, Finland, France, George, Germany, Grenada, Iran, Ireland, Italy, Jamaica, Japan, Monaco, Norway, Pakistan, Philippines, Romania, Spain, Sri Lanka, Sweden, Switzerland, Singapore, Taiwan, Thailand, Turkey, United Kingdom, and other countries.

Further the spouse and children (under 21 and unmarried) may also accompany the principal E visa holder to come to the U.S. regardless of their nationality.  So if the principal applicant is a Taiwanese national, after his E-2 visa is granted, his Chinese-born wife and children may also enter the U.S. with him.  Also, E-2 spouses are allowed to obtain employment authorization to work legally in the U.S.

Currently, Indian and mainland Chinese nationals do not qualify for E-2 visas, but citizens of many other countries including Taiwan, Canada, England, Australia, etc., qualify for the E-2 visa.  India- and China-born investors who have acquired a qualified nationality (e.g., Canada) may also apply for the E-2 visa status.  

How to Apply for E-2 Classification

There are two ways to apply for E-2 visa classification.  Investors may apply for a E-2 visa at an overseas U.S. Embassy or Consulate Office.  If they are already in the United States, they may also apply for the E-2 classification by filing a request for a change of status with the USCIS.

Conclusion

For investors who are citizens of a qualified country, the E-2 visa is a great tool to invest and live in the United States without having to commit a large sum of capital upfront.  There are no fixed amount of dollar investment required and no specific time limit for the E-2 visa.

New law allows Israeli nationals to apply for E-2 Treaty Investor Visa

On June 8, 2012, President Obama signed into law (H. R. 3992) to allow eligible Israeli nationals to receive E–2 nonimmigrant visas.  E-2 visa is for "Treaty Investors" of a treaty country to make substantial investment in the U.S.  This new law will allow Israeli nationals to apply for E-2 visas at overseas U.S. Consulate Officers or to apply for for E-2 status with the USCIS if they are physically present in the U.S.