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News India Times
April 17, 2015
By: Michael Phulwani, Esq., David H.
Nachman, Esq. and Rabindra K. Singh,
Esq., Immigration Lawyers at the
Nachman Phulwani Zimovcak (NPZ) Law
Group, P.C. - VISASERVE (NJ, NY,
Canada, and India).
Another H-1B Nonimmigrant
Visa Lottery is Looming: Now
is the Time to Start to Think
About Your H-1B Back-up
Plan (Part-2)
Alternatives for International Students on
OPT: Theymy be able to get a StemExtension
for an Additional 17Months or Theymay be able
to go back to School.
Theremay be alternate visa options available
to foreign graduates of U.S. universities. If not
selected for H-1B cap, F-1 students in Science,
Technology, Engineering, andMathematics
(STEM) fields may be able to apply for a special
17-month extension. To get the extension, the
student should be employed by an employer
which has duly enrolled in the E-Verify Program,
and should have received an initial grant of
post-completion OPT related to such a degree.
Regulations require that STEM subject exten-
sions must be in themajor or dual-major of the
student's most recent degree received. The ex-
tension of the OPT period for STEMdegree
holders gives U.S. employers two chances to re-
cruit these highly desirable graduates through
the H-1B process, as the extensions oftentimes
may be long enough to allow for H-1B petitions
to be submitted in two successive fiscal years
(two H-1B cycles).
Students who do not hold STEMdegrees
may choose the option of going back to school.
For instance, a student who has completed a
bachelor’s degree froma U.S. institutionmay ex-
ercise the option of enrolling in another bache-
lor’s or master’s degree program.While enrolling
in a bachelor’s degree programmay be a good
idea to buy time in the United States with the
hope of making it to the H-1B cap next fiscal
year, the option of enrolling in amaster’s degree
program should be exercised with caution.
Before enrolling in amaster's degree pro-
gram, a student should double check whether
the U.S. University qualifies as an “institution of
higher education” as defined by section 101(a) of
the Higher Education Act of 1965 because not
everymaster’s degree froma U.S. educational
institution will qualify an individual for the H-1B
master’s cap. For example, some private aca-
demic institutions are “for profit” organizations.
As such, holding amaster’s degree from such ac-
ademic institutions would not qualify the for-
eign national for the H-1Bmaster’s cap.
Another H-1BWorkaround: The L-1A and L-
1BVISASD for IntracompanyTransferees of
Multinational Companies.
Employees employed by companies with an
offshore presence can explore the possibility of
using the L-1 nonimmigrant visa option. The L-1
visa programwas designed to facilitate the tem-
porary transfer of foreign nationals withman-
agement, professional, and specialized
knowledge skills to the United States. Thus, even
within the L category, important distinctions are
drawn between the two types of L visas, the L-1A
for executives andmanagers, and the L-1B for
employees with specialized knowledge.
L-1A executives direct themanagement of an
organization or amajor component or function
of an organization. Similarly, L-1Amanagers
have the primary duty of directing an organiza-
tion, or area of an organization, and supervision
or control of the work of others, or management
of an essential function at a senior level in the
organization’s hierarchy. Managers and execu-
tives need not supervise subordinates. Regula-
tions allow for “functional management”. To
qualify for an L-1B visa, the employee should
have the specialized knowledge of the company,
its product and its application in international
markets, or have an advanced level of knowl-
edge of processes and procedures of the com-
pany.With the recent promulgation of a
Memorandum from the USCIS following Presi-
dent Obama’s announcement in November,
2014, it is our hope that we will not have some
more objective criteria for the use of the L-1B
specialized knowledge intracompany transfer
The use of the L-1 is often referred to strategi-
cally as a “transfer out”. The idea behind the
“transfer out” is that the prospective L-1 candi-
date is transferred outside the U.S. to work for
the subsidiary, affiliate or branch office of the
qualifying organization in the U.S. After spend-
ing 365 days (one year) outside the U.S. the indi-
vidual can be brought back to the U.S. in L visa
status. The advantage to the use of the “transfer
out” strategy is also that if the individual is serv-
ing as an executive or manager outside the U.S.
and they return as an executive or manager to
the U.S. as an L-1A then they can immediately
apply for the green card in E1-3, multinational
manger/executive category. This is a pre-certi-
fied employment-based green card category and
still one of the fastest ways to get the green card
in the U.S.
Additional Alternativ to the H-1BVisa: The O-
1Visas for Extraordinary ability or Artist Candi-
There are two types of O-1 visas. Like the L-1
visas, O-1 visas are not subject an annual cap.
The O-1 visa category is primarily divided into
two categories: O-1A and O-1B. O-1A is for for-
eign nationals having “extraordinary ability” in
the field of the arts, sciences, education, busi-
ness or athletics. If inmotion picture or TV pro-
duction or an artist, the personmay qualify for
O-1B visa provided she/he has demonstrated a
record of “extraordinary achievement.” Some-
times, for artists, all that is required is a showing
of “distinction”. Thus, there are different stan-
dards under the O-1 visa.
It is important to know that O-1 visas are not
limited to the above-mentioned categories.
USCIS interprets the statute to encompass “any
field of endeavor” including craftsmen and lec-
turers. Further, the term“arts” includes not only
the principal creators and performers, but also
essential personnel such as directors, set design-
ers, choreographers, orchestrators, coaches,
arrangers, costume designers, producers, make-
up artists, stage technicians and animal trainers.
On the basis of the foregoing, it is safe to con-
clude that before packing-up bags and leaving
the U.S. or giving up on the hopes of living and
working in the United States, prospective H-1B
visa beneficiaries should carefully explore alter-
native work visa options that may be available to
them in the United States. Onemay qualify for a
cap-exempt H-1B visa if she/he has an offer of
employment froman institution of higher edu-
cation (or related or affiliated nonprofit entities),
or froma nonprofit/government research or-
ganization. Even employment with a third-party
employer may qualify an individual for cap-ex-
empt H-1B provided the beneficiary will per-
form themajority of work at the qualifying
institutions and, the work will benefit the pri-
mary or essential purpose of the qualifying insti-
Also, it continues to be prudent for the na-
tional of a foreign country to check on the type
of trade agreement his/her country has in effect
with the United States as this may qualify the in-
dividual for anH-1B1, TN, E-1, E-2 or an E-3
nonimmigrant classifications. Additionally, em-
ployees of companies with offices both in the
United States and offshore should explore the
option of L-1 intracompany transfer visa.
Moreover, individuals with the “extraordinary
ability” in the fields of science, art, education,
business or athletics may qualify for an O-1A
visa while an O-1Bmay be appropriate for a for-
eign national with “extraordinary achievement”
inmotion picture or TV production. Last but not
the least, F-1 STEM students be sure to speak to
their International Student Officers (ISO) about
obtaining an endorsement on their I-20 Form
for the 17-month extension in order to be able to
try to get into the next H-1B cycle.
We want to reiterate and re-emphasize that
students choosing to enroll in amaster’s degree
program, with the hope of having a better
chance of making it to the H-1B cap next year,
should ‘carefully choose their master’s degree
program since not all master’s degree programs
qualify an individual for themaster’s degree H-
1B cap of additional 20,000 visas.
All Immmigration work including H1-B, Labor Certification and
Work Authorisation, Bankruptcy, Divorces
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