Alternatives to H-1B

For some lucky aliens, such as those who qualify for TN classification, the “alternative” to H-1B may, in fact, be a better choice to begin with, dispensing the with the ridiculously insufficient cap, arbitrary USCIS adjudications of H-1B petitions, the confiscatory governmental filing fees, and the six-year time limitation in H-1B status. But such individuals are likely to number in the minority. For the others, if the alien does hot have a previous cap-subject H-1B petition approval, or has no prospect of cap-exempt employment, the following options may be available.

Immigrant Options. The end game for some clients is permanent residence, either as quickly as possible now or at some point in the future. Immigrant visa options are beyond the scope of this article. However, it is worthwhile to ask, for an individual who is a single and has been in the U.S. for a while, whether they have a U.S. citizen boyfriend or girlfriend. If they do, and may be considering marriage, they should be advised on the law in this regard, since a bona fide marriage and subsequent I-130/I-485/I-765 filing could be the best option for them.

Nonimmigrant Training Options. One option for the cap-closed alien is training. Here are some possibilities.

F-1 STEM Optional Practical Training. The alien may be able to remain in a work-authorized F-1 optional practical training (OPT) status, so as to facilitate a current or prospective employment relationship with an employer that will file an H-1B petition on the alien’s behalf on April 1st under the next fiscal year’s cap. The so-called “STEM extension” of F-1/OPT was created for this very purpose: to give the alien another crack at an H-1B the following federal fiscal year.

Otherwise, the alien’s OPT is limited to 12 months, to be completed within 14 months of graduation. But, a recent STEM (science, technology, engineering or mathematics) graduate can obtain an additional 17 months (29 months total) of OPT, provided that their employer is enrolled in the “E-Verify” program (see and agrees to report the student’s departure within 48 hours. See 8 C.F.R. §214.2(f)(10)(ii)(C). The alien can file for the STEM extension up to 120 days before the expiration of their post-completion OPT and his/her employment authorization is automatically extended for 180 days. See 8 C.F.R. §274a.12(b)(6)(iv).

The Department of Homeland Security (DHS) recently expanded the list of STEM degrees. The current list is attached at Appendix C. Note that the STEM OPT is based upon the most recent degree the alien has received, for which the major (or dual major) must be a STEM subject. See SEVP Policy Guidance 1004-03 (Apr. 23, 2010) at ¶ 8.1, published on AILA InfoNet at Doc. No. 10042761.

F-1 Curricular Practical Training. Another option – though an expensive one – is for the alien to enroll in a new degree program, continue in F-1 status, then apply for Curricular Practical Training (CPT). Pursuant to 8 C.F.R. §214.2(f)(10)(i), CPT is available for alternate work/study, an internship, cooperative education or any other type of required internship or practicum. It may be granted on either a part-time (20 hours/week or less) or full-time (more than 20) basis, requires a job offer, and must be requested from the Designated Student Officer (DSO) who endorses the CPT on the alien’s I-20 form. However, unless the alien enrolls in graduate studies that require immediate participation in curricular practical training, he or she will have to wait until they have been enrolled full-time for one academic year.

H-3 or J-1 Training. Besides F-1 optional practical training and curricular practical training, the law provides for other types of training in certain circumstances – principally in the J-1 exchange visitor and H-3 trainee categories.

H-3. An H-3 “temporary worker” (a misnomer) is an alien petitioned for by an employer to receive instruction and training in any field of endeavor (except graduate medical education or training). However, the statute specifically states that the training program must not be “designed primarily to provide productive employment.” See INA §101(a)(15)(H)(iii).

Four criteria must be satisfied: (1) the proposed training must not be available in alien’s home country; (2) the alien will not be placed in a position that is in the normal operation of the business in which citizen and resident workers are regularly employed; (3) no productive employment of the alien will occur unless it is incidental and necessary to the training and pursuing a career outside the U.S.; and (4) the training will benefit the beneficiary in pursuing a career outside the U.S. See 8 C.F.R. §214.2(h)(7)(ii)(A). Furthermore, strict regulatory criteria govern the content of the training program, which among other things must be exact as to schedule, objectives, and means of evaluating progress toward the objectives; provide training which the beneficiary does not already possess and is not simply an extension of the alien’s practical training; and provide knowledge or skill that the alien will likely use outside of the U.S. (as opposed to in the U.S.). See 8 C.F.R. §214.2(h)(7)(iii).

As can be seen from the foregoing, an H-3 visa is not a bridge to an H-1B. An H-3 trainee is admitted for the length of training program, and for up to two years. 8 C.F.R. §214.2(h)(9)(iii)(C)(1). After two years, the alien is ineligible to extend their stay, change nonimmigrant status, or be readmitted to the U.S. in H or L status unless he or she has resided and been physically present outside of the U.S. for six months. 8 C.F.R. §214.2(h)(13)(iv).

J-1. The J-1 category encompasses a bona fide trainee or intern. The trainee or intern “trains” (never “works”) at a host company or organization under the authority of a DOS-certified sponsor. Sometimes that sponsor is the host company or organization itself, but more often the J-1 sponsor is an “umbrella” organization such as the American Immigration Council (endorsed by AILA) or, locally here in Columbus, the Columbus International Program.

A J-1 trainee must be a foreign national who either has a degree or professional certificate from a foreign post-secondary academic institution anda least one year of prior related work experience in their occupational field outside the U.S., or has5 years of work experience outside the U.S. in their occupational field. See 22 C.F.R. §62.22(d)(2). A trainee program generally can last up to 18 months. 22 C.F.R. §62.22(k).

A J-1 intern must be a foreign national who is either currently enrolled in and pursuing studies at a degree- or certificate-granting post-secondary institution outside the U.S. or graduated from such an institution no more than 12 months prior to the start date of the exchange program. 22 C.F.R. §62.22(a), (d). An internship is limited to 12 months.

Therefore, the J-1 category will be of little use to aliens who have obtained their degrees and/or relevant work experience within the U.S. For other aliens, though, J-1 classification offers a more viable means than does H-3 for obtaining training in the U.S. before moving on to H-1B classification in the future. But the training or internship program must be bona fide, not H-1B employment in disguise, and must be in the intern’s or trainee’s field of study. See 75 FR at 48556.

The J-1 classification allows more productive work to occur during training than does the H-3. The J-1 provides not just training as does the H-3, but work-based training as a program objective. However, U.S. consulates closely scrutinize the J-1 training program to see if it is just a foil for H-1B employment. Also, DOS is questioning and investigating J-1 sponsors whose program participants subsequently become beneficiaries of H-1B petitions.

The J-1 training categories are limited to the following occupations: (1) agriculture, forestry and fishing; (2) arts and culture; (3) construction and building trades; (4) education, social sciences, library science, counseling and social services; (5) health related occupations; (6) hospitality and tourism; (7) information media and communications; (8) management, business, commerce and finance; (9) public administration and law; and (10) the sciences, engineering, architecture, mathematics, and industrial occupations. See 22 C.F.R. §62.22(c)(2). The J-1 sponsor must be designed by DOS to sponsor in the specific occupational category that will be involved in the alien’s training.

Also, the alien must maintain a residence abroad and have the present intent to depart the U.S. at the end of their J-1 training program (see 9 FAM 41.62 Notes 1 and 5), conform to the J-1 sponsor’s rules and, at a minimum, depart the U.S. at the end of their J-1 authorized stay before eventually returning in H-1B classification.

Finally, a definite drawback to the J-1 category is INA §§212(e), which requires certain exchange visitors to return to their home country or country of last residence for two years upon completion of their U.S. training before they may apply for an immigrant visa, adjustment of status, or change to another nonimmigrant status. This section applies when the alien’s participation in the J-1 program was financed in whole or in part, directly or indirectly, by an agency of the government of the U.S. or by the government of his or her nationality or last residence. It also applies when the J-1 alien was engaged in a field on the DOS Exchange Visitor Skills List.

Nonimmigrant Business/Employment Options

B-1 Business Visitor. On occasion, a cap-closed foreign national will ask whether they can simply set up a business in their home country and then contract with a U.S. company to supply the same services they would have provided in H-1B employment. This scenario is fraught with problems – not the least of which is proving to the satisfaction of the Consular Officer (for visa application purposes) or the Customs and Border Control agent (for entry purposes) that the alien will be engaged in legitimate B-1 visitor activities in the U.S. and not prohibited “local employment or labor for hire.”

In this regard, INA §101(a)(15)(B) defines a business visitor as an alien “having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business….” The term "business," as used in this section, refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire. See 22 CFR 41.31(b)(1).

Accordingly, if the alien will be entering the U.S. to render temporary professional services here, but will be paid by his/her foreign employer and retains an unabandoned foreign residence, then B-1 in lieu of H-1B may be an option.

B-1 in Lieu of H-1B. The only reference to the use of B-1 in lieu of H-1B is contained in the State Department’s Foreign Affairs Manual (FAM) 41.31, Note 11, entitled "Aliens Normally Classifiable H-1 or H-3." It does not appear in any other regulations, or in the Adjudicator’s Field Manual.

This use of the H-1B classification permits an alien who would otherwise qualify for H-1B status to apply for a B-1 visa in order to perform temporary “specialty occupation” services in the U.S., provided certain conditions are met. Note 11 states in part:

There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien's temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria: (1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity should not be considered as coming from a 'U.S. source'; (2) In order for an employer to be considered a 'foreign firm' the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee's salary, and the source of the employee's salary must be abroad.

In April of 2011, Senator Charles Grassley (R-IA) sent a letter to DOS alleging that the B-1 in lieu of H-1B category was being abused and demanding statistics and an investigation. It referenced a February 2010 “whistleblower” complaint filed against Infosys Technologies Limited, Inc. by a former employee. (On August 20, 2012, the court in that action granted summary judgment to Infosys.) In response to Senator Grassley, Secretary of State Hillary Clinton wrote him in May 2011, saying “We are working with the Department of Homeland Security (DHS) to consider removing or substantially amending the FAM note that you referenced.”

On June 21, 2012, DOS issued a cable to all posts providing guidance for issuing B-1 visas in lieu of H-1B and H-3 (published on AILA InfoNet at Doc. No. 12062554). That cable was recently superseded by an October 12, 2012 cable (published on AILA InfoNet at Doc. No. 12102246 and attached as Appendix D), which “clarified” paragraphs 4, 7, and 10 of the previous cable “with the assistance of DHS.” The October 12 cable states at the outset that Note 11 “is under review in an interagency process, but remains in effect until further notice. Consular officers should not hesitate to apply this guidance in appropriate cases.”

The cable then emphasizes the following points:

  • The applicant must overcome the presumption of immigrant intent to qualify for B status;

  • The applicant must also plan to engage in H activity – i.e., “activities” (the June 2012 cable said “hands-on work”) that would normally require an H-1B.

  • The employer and source of remuneration must be overseas – i.e., the applicant must continue to be paid by the overseas employer while in the U.S. (though an expense allowance form the U.S. employer is permitted, and a foreign branch of a U.S. firm can qualify as a foreign firm for purposes of Note 11).

  • It cannot be a long-term placement – i.e., should be six months or less in duration. Also, the visa stamp should be annotated “B in lieu of H, 9 FAM 41.31 N11.”

  • The applicant must clearly meet H-1B requirements and clearly be an employee of the overseas company. Regarding the latter: “It may be more difficult for a new hire to establish their employment status with the overseas firm if they are immediately sent to the United States to engage in H-1B caliber activity.” The “activities” (“work” in the previous cable) must clearly be of H-1B caliber. If there is any doubt, a petition will be required.

As to B-1 in lieu of H-1B, the cable concludes:

8. Thus, in order to qualify for B-1 in lieu of H-1B, the applicant must overcome the 214(b) presumption of immigrant intent, clearly be employed and paid by an overseas firm, and clearly plan to engage in H-B caliber activity for a temporary period, normally less than six months in duration. Note that while an H-1B worker is not subject to the immigrant intent provisions of 214(b) and may change employers in the United States, a Note 11 B-1 applicant is subject to 214(b) and must intend to maintain employment with the same overseas employer.

9. Examples of applicants who would need to file an H-1B are those who: are not clearly H-1B caliber or not planning to engage in H-1B caliber activity; are not clearly an employee of an overseas firm or paid by an overseas firm; plan to stay in the United States on more than a temporary, short-term basis (which generally would mean a stay of more than six months); plan to change employers in the United States; or fail to overcome 214(b).

It would appear that in adjudicating B-1 in lieu of H-1B visa applications, the consulate will follow the “right of control” principles laid down in the Neufeld Memo, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements, HQ 70/6.2.8, AD 10-24 (Jan. 8, 2010) published on AILA InfoNet at Doc. No. 10011363.

Also, in view of the desired visa annotation as “B in lieu of H, 9 FAM 41.31 N11,” claiming this status when entering under the Visa Waiver Program will be risky.

Trade NAFTA (TN). TN is a good option for Canadian and Mexican citizens offered temporary professional employment in the U.S. See 8 C.F.R. §214.6. Indeed, it has distinct advantages and is often preferred over the H-1B category. There is no annual quota; no limitation on length of stay; no prevailing wage requirement; no USCIS petition requirement; no exorbitant filing fees.

Also, although TN status is limited to the 63 professions listed in Appendix 1603.D.1. to NAFTA (copy attached as Appendix E), these classifications encompass most jobs for which H-1B petitions are typically filed. The employer does not have to prove that the job offer is a “specialty occupation”, only that its job offer falls within one of the qualifying classifications and the alien possesses the qualifications which NAFTA specifies. However, where the classification requires a bachelor’s degree, the alien cannot use a combination of education and experience as the equivalent of a bachelor’s degree; there is no three-for-one equivalence between experience and education as there is for H-1B’s.

A major drawback to TN is that the dual intent doctrine does not apply and the alien is subject to the INA §214(b) presumption of immigrant intent. See 63 FR 1331 at 1333 (Jan. 9, 1998); 8 C.F.R. §214.6(b); 22 C.F.R. §41.59(c). Hence, a TN alien who embarks upon a permanent residence process in the U.S., or who loses virtually all ties to their home country (Canada or Mexico) through extended employment in the U.S. is at risk of being denied TN classification.

Certain TN categories are more problematic than others. For example, special problems arise when attempting to classify the alien as a TN management consultant: “A management consultant should generally not be a regular, full-time employee, of the entity requiring service ... In cases [of full-time employment] the management consultant should not be assuming an existing position, replacing someone in an existing position, or filling a newly created permanent position. In short, the management consultant should either be an independent consultant or the employee of a consulting firm under contract to a U.S. entity or the consultant, if salaried, should be in a supernumerary temporary position.” Memo, Puleo, Asst. Comm., Adjudications CO 1773-C (Oct. 4, 1989), reprinted in 9 AILA Monthly Mailing 253-54 (Apr., 1990).

The scientific technician/technologist category can also be problematic. NAFTA requires a technician/technologist to possess: (1) theoretical knowledge of: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (2) the ability to solve practical problems in any of these disciplines, or the ability to apply principles of any of these disciplines to basic or applied research. No degree or post-secondary diploma is required. But, the technician/technologist must provide support to a professional in one of the named fields; the job offer must demonstrate that the individual’s work will be interrelated with that of the supervisory professional and that it will be managed, coordinated and reviewed by a professional; and, the technician/technologist’s theoretical knowledge must have come from completion of a least two years of training in a relevant educational program. CBP/USCIS uses the Occupational Outlook Handbook (OOH) published by the U.S. Department of Labor (at to determine if the proposed job duties are consistent with those of a scientific technician/technologist.

Self-employment by a TN in the U.S. is forbidden. See 8 C.F.R. §214.6(b). The successful TN applicant is admitted for up to three years. The application process is easy: the TN applicant presents him or herself at a port of entry or preclearance office and submits an application package. The package will include proof of citizenship, an offer letter from the prospective employer, and evidence that the alien possesses the required qualifications such as documentation of diplomas, degrees, certificates and professional memberships. Certain ports of entry, such as the Peace Bridge in Buffalo, are considered more favorable than others. Counsel should investigate that in advance.

E-1 Treaty Trader and E-2 Treaty Investor. Sometimes the stars align and the cap-subject alien happens to be a national of a country with which the United States has an E-1 and/or E-2 treaty. A list of the E-1 and E-2 treaties currently in effect is provided at Appendix F. Pursuant to the NAFTA treaty, E visas are available to Canadian or Mexican citizens.

It is country of nationality, not just country of birth that determines the alien’s nationality for E visa purposes. An alien can be a national of more than one country. Also, unlike with the L-1 category discussed next, the alien need not have worked for a foreign entity abroad in order to potentially qualify for an E-1 or E-2 visa. This may have particular appeal for an entrepreneurial individual who would like to start their own business in the U.S.

If the alien is a national of an E-1 treaty trader country, then the following requirements must be proven to accord E-1 classification to the alien: (1) requisite treaty exists; (2) individual and/or business possesses the nationality of the treaty country; (3) activities constitute trade within the meaning of INA 101(a)(15)(E); (4) trade is substantial; (5) trade is principally between the United States and the treaty country; (5) applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and (6) applicant intends to depart the United States when the E-1 status terminates.

If the alien is a national of an E-2 treaty investor country, the following elements must be established for E-2 classification: (1) requisite treaty exists; (2) individual and/or business possess the nationality of the treaty country; (3) applicant has invested or is actively in the process of investing; (4) enterprise is a real and operating commercial enterprise; (6) applicant's investment is substantial; (7) investment is more than a marginal one solely for earning a living; (8) applicant is in a position to "develop and direct" the enterprise; (9) applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm's operations in the United States; and (10) applicant intends to depart the United States when the E-2 status terminates.

The regulations define in detail what constitutes “trade,” “’principal’ trade,” and “substantial trade” for purposes of the E-1 classification. Similarly, they define what constitutes “investment,” “substantial investment,” and a “marginal” enterprise. See 9 FAM 41.51 Notes 4.5 through 12.

An employee of an E-1 or E-2 must have same nationality as the treaty employer. In addition, the position in the U.S. must be as an executive, supervisor, or an “essential” employee with special qualifications needed by the U.S. entity.

There is no annual quota on E-1 or E-2 visas, no prevailing wage or LCA requirement, and no absolute time limitation. No USCIS petition is required. The E-1 or E-2 visa holder will receive a two-year period of stay upon each entry. The dual intent doctrine has been recognized for individuals in E status. See Letter, Bednarz, HQ 214e-C, 245-C (Oct. 1, 1993), reprinted in 70 No. 42 Interpreter Releases 1444, 1456–58 (Nov. 1, 1993). The principal alien’s dependent spouse and children can apply for employment authorization.

E-3 Australian Special Occupation and H-1B1. The E-3 classification was specially created to give Australian nationals some breathing room from the cap. It permits the alien to enter the U.S. “solely to perform services in a specialty occupation” and requires a labor condition application just like an H-1B. The category is limited to 10,500 per fiscal year. In addition, the U.S. has entered into “Fast Track Trade” legislation with Chile and Singapore under which Chile receives up to 1,400 H-1B1’s and Singapore up to 5,400 H-1B1’s.

L-1 Intracompany Transferee. Another instance where the stars align is when a cap-subject alien is offered a job by the U.S. parent, subsidiary, affiliate, or branch office of a company abroad where he or she had worked in an executive, managerial, or specialized knowledge position for at least one year within the three years preceding their application for admission to the U.S. If this happens to be the case and the U.S. company offers the alien a job in an executive, managerial, or specialized knowledge capacity, then the individual becomes eligible for an L-1A (executive or managerial) or L-1B (specialized knowledge) visa.

“Parent”means a firm, corporation, or other legal entity which has subsidiaries. “Branch” means an operating division or office of the same organization housed in a different location. “Subsidiary”means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.

“Affiliate”means (1) one of two subsidiaries both of which are owned and controlled by the same parent or individual, or (2) one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity. (There is also a special provision for certain accounting partnerships organized in the U.S.) See 8 CFR § 214.2 (l)(1)(ii)(I)-(L)(3).

Thus, the U.S. employer or the foreign employer can be a 50/50 joint venture with a third party, and still potentially qualify as a subsidiary or affiliate. Moreover, the U.S. employer can be a start-up company doing business for less than one year. In such a case, a “new office” L-1 petition can be filed that is valid for one year.

L-1B status is not permitted if the employee will be “stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and will be “principally” under the “control and supervision” of the unaffiliated employer, or the placement in the unaffiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer.” See 8 U.S.C. §1184(c)(2)(F).

There is no annual quota on L-1 visas. However, there is a seven-year maximum time limitation on stay in an L-1A classification, and a five-year maximum time limit on L-1B. Dual intent is recognized. The employer must file an I-129 petition with USCIS and a $500 fraud fee is assessed in addition to the basic I-129 filing fee. If the employer has 50 or more employees and more than 50% of the employees are L-1’s or H-1B’s, the employer must pay an additional $2,250 fee. See PL 111-230, Title IV. The principal alien’s dependent spouse and children can apply for employment authorization. As noted earlier, USCIS is applying the law more strictly and denying more L-1 petitions, especially L-1B specialized knowledge filings.

O-1 Alien of Extraordinary Ability. On rare occasion, the O-1A category may be viable, particularly when an argument can be made that the alien has extraordinary ability in the arts, for which the legal standard is more generous that for extraordinary ability in the sciences, education, business, or athletics.

In general, the O-1A category covers an alien who “has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim.” 8 C.F.R. §214.2(o)(1)(ii)(A)(1). The statue includes “any field of endeavor.” Memo, Weinig, Acting Asst. Comm., CO 214O.1-C, 214P.1-C (June 25, 1992), reprinted in 69 No. 33 Interpreter Releases 1070, 1084–86 (Aug. 31, 1992).

The work to be performed in the U.S. need not require a person of extraordinary ability, but the alien must continue in the same field. Unlike an EB-1 alien of extraordinary ability, an O-1 alien cannot self-petition.

The O-1 recognizes dual intent. See 8 C.F.R. §214.2(o)(13). There is no annual quota on O-1 visas, and no limit on the total amount of time the alien may spend in the U.S. in O-1 status. The initial petition can grant up to three years of O-1 classification. Thereafter, one-year extensions of O-1 may be obtained. While the O-1 requires filing a petition with USCIS, there is no prevailing wage or LCA requirement and no additional USCIS filing fees beyond the base I-129 filing fee.

To qualify for O-1 classification as an alien of extraordinary ability in the sciences, education, business, or athletics, it must be shown that he or she is one of the small percentage who have risen to the very top of the relevant field of endeavor and has received sustained national or international acclaim and recognition for achievements in the field of expertise. This can be established by either showing that the foreign national has been awarded a major and internationally recognized award (such as a Nobel Prize), or that he or she satisfies at least three of a list of eight criteria: (1) receipt of nationally or internationally recognized prizes or awards for excellence in his or her field; (2) membership in an association in the field that requires outstanding achievements of its members, as judged by national or international experts in its field; (3) published material in professional or major trade publications or major media about the alien, concerning the alien’s work in the field; (4) participation on a panel, or individually, as a judge of the work of others in the field; (5) scientific, scholarly, or business-related contributions of major significance in the field; (6) authorship of scholarly articles in the field in professional journals or other major media; (7) employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation; and (8) high salary or other remuneration commanded.

A lesser legal standard exists for extraordinary ability in the arts. Here extraordinary ability means “distinction,” INA §101(a)(46). The regulations in turn define distinction as “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered…” See 8 C.F.R. §214.2(o)(3)(ii). In order to prove distinction in the arts, the petitioner must submit evidence of the alien being nominated for or the recipient of a significant international or national award or prize, such as an Academy Award, Emmy, Grammy or Director’s Guild Award, or by documenting at least three of the following six criteria: (1) lead in production having a distinguished reputation; (2) critical reviews in major newspapers or trade journals; (3) lead for organization that has a distinguished reputation; (4) record of major commercial or critically acclaimed successes; (5) significant recognition from organizations, critics, government agencies or other recognized experts in the field; or (6) has commanded or will command a high salary.

O-1 petitions must include a written advisory opinion from an appropriate union, if one exists, describing the individual’s ability and achievements in the field and the duties to be performed. If no union exists, the petition may include nonunion opinions from a peer group or other expert source. As highlighted at the start of this article, the USCIS has tightened its application of the O-1 legal requirements, resulting in a trend of increasing denials.

Working Abroad for an Employer in the U.S. When an alien works outside of the United States for an employer located within the U.S., no visa or immigration status is required under U.S. immigration law. Of course, the alien must be authorized to work in whatever country they happen to be located.

Also, the U.S. employer should consult with a tax adviser on what its income tax withholding and other tax-related obligations may be with respect to the alien. It may also want to consult with counsel as to its obligations under foreign employment and labor laws.

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