Trends in Employment-Based Immigration: The O-1A Visa Remains an Attractive Option

For tech, business, and creatives professionals, entrepreneurs, athletes & coaches, and qualifying F-1 students and J-1 exchange visitors, the O-1A work/employment visa remains one of the best U.S. immigration options despite significant increases in visa backlogs, denials of routine visa extensions, and retrogression amongst employment based (EB) green card categories.

The O-1A visa has no annual numeral limitation/cap and no visa lottery. This 3-year work/employment visa is reserved for individuals who possess extraordinary ability in the sciences, education, business, motion picture, arts or athletics. Per the regulations, “extraordinary ability” is exhibited through a showing of sustained national or international acclaim and a demonstrated record of achievement, and the O-1 classification has been interpreted to apply to “any field of endeavor”.

Contrary to popular belief, the O-1A visa is available to individuals who possess special skills in their area of expertise (not just Nobel Prize laureates or Oscar winners, et. al.). Talented individuals in these fields can establish eligibility through the submission of documentation that fulfills three (3) of the below-listed O-1A criterion:

· Employment in a critical or essential capacity;

· Original scientific, scholarly, or business-related contributions;

· Published material about you in professional or major trade publications, or other major media;

· Membership in associations;

· Authorship of scholarly articles in the field, in professional journals, or other major media;

· High salary or other remuneration;

· Participation as an official judge/reviewer of the work of others; and

· Receipt of a national or international award.

Most importantly, the USCIS premium processing program remains available to O-1A applicants, allowing for approvals to be secured very quickly (within 15 days) once the requisite documentation is obtained.

Despite the restrictive effects of the Buy American and Hire American (BAHA) Executive Order and associated policies on immigration categories such as the H-1B, the O-1A visa remains underutilized and is among the best visa categories for talented foreign nationals.

For more information on the O-1A visa or any other U.S. immigration options, please contact me at shaune@fraserpllc.com.

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

Shaune FraserSeptember 22, 2019O-1 Visa, EB-1 Visa, H-1B Visa, Employment-Based Immigration, Green Card, Retrogression

H-1B Visa Alternatives: Options & Strategies In The Current Immigration Climate

By: Shaune D. Fraser, Esq.

On Friday, April 5, the United States Citizenship and Immigration Services (USCIS) announced that it had already received sufficient filings for regular H-1B cap-subject cases for fiscal year (FY) 2020. The filing period for cap-subject H-1B petitions opened on Monday, April 1, and for the seventh consecutive year, the general cap was reached within the first week of filing. USCIS will now conduct a lottery to select those petitions that will be adjudicated. Beginning this year, USCIS will officially reverse the order of the general and advanced degree lotteries, prioritizing advanced degree holders in the selection pool.

Over the past decade, the H-1B visa has been the most practical bridge to employment for graduating students at U.S. academic institutions (F-1 visa holders). However, recent USCIS statistics indicate that 60% of H-1B cases received RFEs (Request of Evidence) in FY 2019 and 40% of those were subsequently denied. These historically high denial rates and the changes to the selection order under the H-1B visa lottery stem from the Buy American and Hire American Executive Order which has resulted in heightened scrutiny during adjudication, specifically as it relates to the interpretation of a specialty occupation, the qualifying employer-employee relationship, and whether the foreign national beneficiary has maintained status.

In light of these developments and the very high demand for the H-1B classification, F-1 students and other qualified individuals are encouraged to explore the following alternative visa categories which may utilized to facilitate the same employment-related objectives in a swift and efficient manner:

O-1 Visa
Foreign nationals, in any field of endeavor, who have been recognized for their achievements or outstanding work, in the U.S. or internationally, should consider the O-1 visa in lieu of the H-1B. An O petition may be approved for up to three years, and extensions may be granted indefinitely for long-term projects or assignments. Currently, there is no annual limit on O visa numbers. For more information, check out this Blog post.
EB-2 NIW | Green Card
In a precedent decision issued in December 2016 (Matter of Dhanasar), the USCIS Administrative Appeals Office (AAO) announced a new analytical framework that has made this green card classification more broadly available to students and professionals pursuing entrepreneurial endeavors in the U.S. national interest.
TN Visa
Canadian and Mexican citizens who will perform professional assignments in the U.S. are eligible for the TN visa. A TN petition may be valid for up to three years and can be filed with USCIS, or directly at select ports of entry. The North American Free Trade Agreement (NAFTA) specifies the list of occupations, as well as the corresponding educational and/or licensure requirements, many of which are aligned with the careers of graduating undergraduate or graduate international students.
L-1 Visa
This category permits a U.S. company to temporarily transfer certain employees from a foreign affiliate abroad. The employee must be offered employment in either an executive/managerial position (L-1A) or in a specialized knowledge position (L-1B) to qualify for this classification. The foreign national must have been employed by the qualifying foreign corporation for at least one continuous year within the previous three years.

In addition to the above-referenced visas, there remain a variety of other visa and green card classifications available to those applicants encountering issues with their H-1B petitions. Some of these categories include the EB-1 green card for individuals of extraordinary ability, P-1 visa for athletes and entertainers, E-1/E-2 visas for treaty traders/investors, and B-1 visa for business visitors.

The U.S. remains the global leader in attracting the most talented students and professionals, however, increased scrutiny and restrictionist policies have imposed significant hurdles to those intending to advance their professional careers with U.S.-based corporations. Foreign nationals are advised to begin planning their professional careers well in advance of their anticipated graduation date and, when possible, explore other U.S. immigration categories in order to accelerate their post-academic, professional careers.

For more information, please contact me at shaune@fraserpllc.com

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

Immigration, Immigration Attorney, US ImmigrationShaune FraserApril 11, 2019Fraser Immigration Law, PLLCFraserPLLC, Immigration, US Immigration, H.1B, Visa, O-1, TN, EB-2, B-1, Employment-Based Immigration

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