Sanwar Ali: US work visa options under Donald Trump Dec 19

By Sanwar Ali

In reality US visa law has not changed that much under President Donald Trump.  The US work visa options we suggest below would most likely have been similar under Obama.  It is very difficult to persuade both Houses of Congress to pass substantive legislation.  What has happened is that steps have been taken to make the process more difficult and time consuming, with a higher refusal rate.  This is presumably part of the “Buy American Hire American” Trump policy.

It seems that much of the time the main work visa options are either to be transferred over to the US or start a business.  Some of the time it is actually easier for an overseas employee to be transferred to the US than for an US employer to employ a new recruit.

It should be noted that the H1B visa and H2B visa is frequently unavailable due to the quota.  Please note that in general you either need to already have a job offer in the US or you need to be starting a business.  I include some of the more popular work visa options below.  These are mainly non-immigrant visas.

L1 Intra-Company Transfer visa becomes more difficult

For the L1 visa you need to show that you have worked physically outside the US for one year in the last three years for a company with common control with the US company.  The L1A visa for executives and Managers, and the L1B visa for specialized knowledge workers is difficult to obtain with extensive documentation requirements.  Applications are looked at in more detail under the Trump administration.

B1 in lieu of H1B visa refusal rate increases

B1 in lieu of H1B visa can be a quick way for overseas businesse to send degree level (or degree equivalent) employees over to the US for a temporary period of up to a year.  The person concerned remains an employee of the business outside the US. However, it has become riskier under Trump.  US visa officers are more reluctant to grant these visas.

E2 visa or E1 visa for certain nationalities

Businesses can look at coming under the E1 Treaty Trader visa based on substantial trade or E2 Treaty Investor visa based on substantial investment.  However, in practice businesses are more likely to qualify for the E2 Treaty Investor visa showing a substantial investment.  The US business needs to be at least fifty percent owned and be controlled by nationals of the Treaty Country.  The employee being sent to the US needs to be a national of the same Treaty Country.  

If the employee is not the same nationality as the owner of the business, then in some cases it may be worth considering registering a new business to enable the employee gain entry to the US.  However, this can be quite an expensive option and is only available if the applicant is a national of an E2 or E1 Treaty Country.

E3 visa for Australian Specialty workers

The E3 visa is for graduate level staff and is similar in some respects to the H1B visa.   The good news is that the quota is never filled, and procedures are simpler and faster compared to the H1B visa.  Therefore, may be a good option for Australian citizens only.  However, the refusal rate has increased under the Trump administration.

H1B visa for specialty occupations

One of the best known visas is the H1B visa for specialty occupations for graduate level (including graduate equivalent) employees.  However, in many cases there is a quota of 85,000 and this visa is heavily oversubscribed.  Starting in 2020 applying under the quota will be much easier than before.  The employer submits a simple application between 1 March 2020 and 20 March 2020. This year and in previous years applications had to be submitted in the beginning of April each year, and a full application needed to be made to the USCIS.  For those subject to the cap the likelihood of success is quite low, being probably about thirty to fourty percent.  You can only start in October in that year.

O1A Visa for extraordinary ability in the sciences, education, business or sport

The O1A visa category is for the small number of people who are at the top of their profession. You need to document the extraordinary ability in some detail.  For example those with an international prize or award may qualify and those who have made significant contributions in their field.  Because of the difficulties in obtaining other types of visas, people are trying to see if they can come under the O1A visa or O1B visa for those of extraordinary ability in the arts.

OPT Optional Practical Training

Those on F-1 student visas can apply for OPT after one year of study, or after completion of their course.  After the end of the course applicants can apply for one year, with an additional two years possible for those who have completed certain STEM degree courses.  STEM courses are those in Science, technology and engineering.  This has become more difficult under Trump with some applicants experiencing lengthy delays.

H2B Visa for non-agricultural jobs

The H2B visa is difficult to obtain and is only available to work in the US for relatively short periods of time.  The employer needs to complete temporary labor certification to show there is a shortage.  Unavailable much of the time due to the quota of 66,000 visas.

J1 Exchange Visitor Program

There are a large number of different J1 Exchange Visitor programs.  However, many of these programs are for training schemes and for short term schemes.  May be worth considering in some circumstances.

Green Card Applications

The problem with immigrant visa petitions is the processing times.   Likely to take years.   There is currently a backlog of EB1 immigrant visasEB2 immigrant visas may be quicker than EB1 visas. However, processing times are still quite lengthy.  In addition, processing times are particularly lengthy for Indians who may very well have to wait many years for a Green Card.

While there are various US visa options, sadly much of the time none of the options are suitable.  Also, in general you either need to already have a job in the US to come under a visa category or need to start a business.

Workpermit.com can help with E1E2L1, H1B and B1 in lieu of H1BB1 Business Visit VisasE3 Visas and other types of US Visas

If you would like to apply for a US work visa – including L1 visasE1 and E2 visas, B1 in lieu of H1B visas and H1B visas - WorkPermit.com can help. We have in-house US qualified lawyers.

WorkPermit.com is a specialist legal services firm with more than thirty years of experience dealing with visa applications. We can help with a wide range of visa applications to your country of choice. Please feel free to contact us for further details.