“Outside of the Box Thinking” In the Diagnosis of Immigration Strategies

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“Outside of the Box Thinking” In the Diagnosis of Immigration Strategies


In the world of H-1B Quota limitations, it is becoming increasingly necessary for immigration practitioners to employ “outside of the box thinking” in diagnosing immigration strategies for prospective nonimmigrants. Traditionally, the linear world of immigration processing saw the immigration evaluation of a prospective client as a relatively formulaic undertaking; job offer, plus college degree in the field of intended employment equaled an H-1 professional visa. In today’s immigration paradigm, where the H-1b fiscal quota has been reduced to a paltry 65,000 visa numbers, wit 20,000 additional visas reserved for U.S. Master’s Degree Holders, it is essential that we begin to expand the traditional framework and begin to assess the applicability of other, lesser-used classifications within the immigration calculus; specifically, the TN visa, the E3 Visa, the O visa, the I visa and the B-1 in lieu of the H visa and certain cap-exempt H-1 visas, such as non-profit petitioners, and institutions of higher learning. While the categories certainly do not apply to all candidates, as many are limited by nationality and the very specific nature of the job offer and qualifications of the beneficiary, in certain circumstances, they may present unique options for obtaining visa status in the absence of the H-1 category. The analysis that follows represents a cursory overview of these narrow categories, and the consequent applicability to the prospective candidate.


The TN Visa

Reserved for nationals of Canada and Mexico, and not subject to the fiscal cap, the TN visa is a bi-product of the NAFTA Treaty, and allows for certain professionals prescribed on the NAFTA job list, to obtain indefinite visa status in increments of 3 years, with a job offer from a US employer. Less rigorous than the H-1b classification in terms of not requiring USCIS pre-approval, the LCA and the numerical cap, the TN classification is an interesting alternative for qualified candidates from Mexico and Canada.

THE E3 Visa

Another professional visa classification borne out of treaty ratification, the E3 visa allows for nationals of Australia with college degrees or the equivalent to qualify under similar procedures to the TN visa, for indefinite visa status in 5 year increments. Like the TN visa, and distinct from the H1b, the E3 is a non-dual intent visa.

The O Visa

A highly specialized visa, available to “aliens of extraordinary ability” in diverse fields, the O is a non-immigrant visa, which is not subject to the numerical cap; more agile in its application, and while traditionally reserved for fields within the rubric of the arts, entertainment business and athletics; in the burgeoning world of IT innovation and web-based entrepreneurship, the O-1 is becoming an increasingly unique category to evaluate with your high-performance client. Defined by a clearly delineated statutory criteria, in which the beneficiary must satisfy, or exceed, three of the eligibility requirements, objective documentation in support of the beneficiary’s eligibility is essential to this visa category.


The I visa

The media representative visa. Again, while limited to the very specific qualifying criteria establishing eligibility as a representative of the media from a foreign media source, with remuneration being provided abroad, by the source, the I visa offers a unique option for those individuals within related fields; including fee-lance journalism, traditional correspondent, opinion writer, radio commentator, and in some cases, documentary film makers. In this era of broad-based media dissemination in varying incarnations, this visa provides a unique point of departure for further analysis. Recent events, like the “Arab Spring”, in which “new” media representatives heralded the fall of regimes throughout that region of the world, the role of the media representative is proliferating in the professional spectrum.

The B-1 in Lieu of the H

The B-1 visa category is generally for those seeking entry into the United States to engage in temporary, business-related activities that do not involve the performance of day-to-day work duties.  The B-1 in lieu of H1B visa category, however, allows individuals to enter the United States temporarily, to perform duties related to their foreign employment.

Cap Exempt Petitioners

Finally, while the H-1b is traditionally subject to the rigid fiscal cap, determined at the inception of the federal fiscal year by the attorney general, the H-1b does offer some unique exemptions for qualifying petitioner for those professionals with offers of employment from non-profit organizations, that is 501 (c)(3) entities, and for institutions of higher learning with a specific organizational framework. In a professional world where philanthropy has become a powerful sector in the modern economy, 501(c)(3)s have expanded their market presence as a viable source for meaningful career tracks. This holds true for think-tanks, foundations and policy fomenting organizations that hold the unique non-profit status, and satisfy the eligibility framework for this category, as delineated by the statutory criteria designated for the H-1b classification. Institutions of higher learning with certain research components, can also, in specific cases, for cap exempt status.


What should be drawn from this analysis is certainly not blanket availability of these visas, but rather, the need for highly focused, case by case analysis of client’s eligibility for categories that have historically been shrouded in misunderstanding, and dismissed as in applicable. Furthermore, in this practice culture of increasingly scarce H-1b availability, it is incumbent upon practitioners to engage in creative, results-oriented thinking, with a willingness to engage in “outside of the box” analysis in the diagnosis of immigration strategies. Until there is a full-scale re-alignment of the H-1 category to reflect the true demands of foreign, professional, skilled-labor, our responsibility as immigration practitioners is to approach case diagnosis in a more comprehensive approach; moving in a more dynamically, analytical approach from category to category; identifying nexus strains between the client and the full spectrum of visa classifications. It is a new world order for immigration practitioners, and we must rise to the challenge of overcoming the restrictive milieu that presently defines our field, and thus, stay in front of the inclination to resign oneself to a monolithic H-based world view.

Joshua P. Bratter, Esq.