Grand Central Station

Many foreign graduates who qualified for J-1 intern visas to work in the U.S. last year are getting ready to pack their bags. Besides J-1 intern visas, degree holders and those without a degree but with 5 years of relevant experience may qualify for an 18-month J-1 trainee visa.

The problem with intern and trainee visas however, is that they end after 12 or 18 months, leaving few work visa options for many who have been offered U.S. employment at the end of the J-1 period.

The H1B professional visa is the correct work visa category but, sadly, only 65,000 of these visas are available annually and this worldwide quota is woefully short of demand. It opens on April 1st every year for a work start date of October 1st and in recent years, it’s been so over-subscribed that USCIS runs a computer-generated lottery to decide which applications will be accepted for processing; chances of ‘winning’ are about 3:1 – terrible odds!

What about the unlucky lottery ‘losers’ and their would-be employers, not to mention those who miss the April 1st deadline?

For students on an F-1 visa, Curricular Practical Training (CPT) may sometimes be an option, see: https://www.ice.gov/sevis/practical-training

STEM (Science, Technology, Engineering and Mathematics) students may apply for a 17-month STEM extension in certain circumstances.

For USCIS Q&A on this topic: https://www.uscis.gov/archive/archive-news/questions-and-answers-extension-optional-practical-training-program-qualified-students

For Stem degree list: https://www.ice.gov/sites/default/files/documents/Document/2014/stem-list.pdf

The problem for J-1 graduates and trainees is they’ll often need to return to their home country or go elsewhere for a period before being able to work in the U.S. again, which translates into lost job opportunities for foreign nationals and lost talent for the U.S. Let’s not forget that a J-1 applicant is required to have the intent to return to their home country after the J-1 visa is up but USCIS accepts that circumstances may change and there is nothing to stop a J-1 visa holder from applying for a H-1B visa if they’re offered a job while in the U.S.; the H-1B quota, however, ensures that most won’t even bother applying and many of those who do apply, will not ‘win’ the visa lottery. Other countries seek to attract foreign talent, blatantly contrasting their open-door policies for the best and brightest with the insular policies of the current U.S. administration. Any hopes for immigration ‘reform’ in a positive sense are “dead and gone. They’re with O’Leary in the grave.” (WB Yeats.)

As for entrepreneurs, given President Trump’s recent shelving (and expected scrapping) of President Obama’s International Entrepreneur Rule, often referred to, in hope, as a ‘start-up visa’ – it was supposed to go into effect on July 17, 2017 – many disappointed entrepreneurs will need to go back to the U.S. visa drawing board.

The following is a very brief description of the most common visa categories which may come to the rescue of some J-1 grads/interns, entrepreneurs and others; for more information, see: http://obrienandassociates.com/us-immigration-resources/

E-1/E-2 treaty trader/investor visas are available to nationals of countries which have relevant treaties with the the U.S., including Ireland and the UK. E-1 visas are for foreign companies with U.S. based customers and E-2 investor visas are for companies investing in starting or acquiring a business in the U.S. An “E company” gains something of an umbrella status with the embassy of the treaty country and may hire nationals of that country for managerial or specialist roles. Spouses may obtain work authorization.

E Treaty is a great visa option for any graduate who can secure a job with a U.S. company which is at least 50% owned by nationals of the applicant’s country of citizenship, as long as that country is an E treaty country. Networking in the right places is required! E-2 is also currently the closest thing to a U.S. start-up visa for entrepreneurs – in light of the almost certain scrapping of Obama’s Entrepreneur Rule referred to above, the E-2 visa remains one the foreign entrepreneur’s best options.

NOTE: a maddeningly common misconception is that an E visa holder is prevented in all cases from becoming a permanent resident/green card holder. This is simply not true.

L-1 visa is for intra-company transfers and requires the applicant to have been employed as manager (L-1A) or specialist (L-1B) by a related foreign company (at least 50% commonly owned) for at least 1 year before being transferred to the U.S. It’s suitable for well-established U.S. companies and less so, generally, for start-ups. The requirement for ‘specialized knowledge’ for L-1B workers is still interpreted inconsistently and obtusely by USCIS (despite a directive from Obama to the agency in 2015 to come up with a consistent standard). This means that L-1B is not only a tough but also a risky category, in many cases. Spouses of L-1 holders may obtain work authorization.

O-1 visa for individuals with extraordinary ability or achievement in sciences, education, business, athletics or the arts may be worth exploring though many graduates may be too inexperienced or early in their careers to qualify; entrepreneurs may often avail of O-1A for business or O-1B for art/design. A disadvantage of O-1 visas is that spouses are not eligible for work authorization. O-1 visa holders may qualify for permanent residence/green card (including through an EB-1 petition, in some cases), though like E visas, O-1 is a single intent visa.

H-3 visa may be an option for some J-1 interns and trainees. The H-3 is a training visa and can be granted for up to 2 years, but the training must be of a kind that is not available in the applicant’s home country; it must be different from any training the applicant has already received in the U.S.; the applicant must require the training to advance their career outside the U.S., and must not be taking ‘employment’ from a U.S. worker.

TN visas are available to Canadian and Mexican professionals under NAFTA and E-3 visas allow Australian professionals to work in the U.S.; spouses of TNs are not eligible for work authorization but E-3 spouses are.

All the categories discussed above are non-immigrant or temporary but in some cases, permanent residence (green card) may be an option or even the best option (e.g., EB 1-3 for multinational managers). Even for PERM cases requiring advertising of the job/attempted recruitment of U.S. workers (DOL certification), the bachelor’s category (EB-3) is current for Ireland and the UK as I write, meaning that visas are immediately available, in stark contrast to the impossibly lengthy backlogs of previous years.

Conclusion

Take visa advice early from trusted professionals with a reputation for success. Increase your knowledge and your U.S. visa options. That will make all the difference!

Contact us:
Via email: http://obrienandassociates.com/contact-us/
Twitter: @usvisaexpert
LinkedIn: https://www.linkedin.com/in/deirdreobrien1

OBA Law Office Limited t/a O'Brien And Associates • Registered in Ireland: 541466 • Registered Office: As Above

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