Dear Sophie: Any upgrade options for E-2 visa holders interested in changing jobs?

Here’s another edition of “Dear Sophie,” the advice column from a practicing attorney that answers immigration questions about working at technology companies.

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Dear Sophie:

I’m currently here in the U.S. on an E-2 visa.

My employer, a company based in Slovakia, moved me to the U.S. to help establish our U.S. operations. What are my options if I want to look for other job opportunities here in the U.S. with a different company? Is there a feasible process to upgrade my E-2 visa to another type, like an L? Thank you!

—Restless in Redwood City

Dear Restless,

Thanks for your questions. Nonimmigrant (temporary) visas that allow you to work in the U.S. require an employer to sponsor you for the visa, and those visas remain tied to the employer sponsor and the position for which you were hired. We recently launched the Extraordinary Ability Bootcamp (promo code DEARSOPHIE for 20% off enrollment) — this is a class that can help you strengthen your credentials if you end up pursuing an O-1A visa, which I’ll discuss more about below.

There are a few visa options available if you find a U.S. company willing to sponsor you such as J-1, O-1A and H-1B, and various green card pathways. You had asked about an L Visa, but this would only be an option if you had worked for the new company abroad for at least one year during the past three years. Both the L-1A visa and the L-1B visa enable multinational companies to transfer a manager, executive or specialized knowledge employee from an office abroad to a U.S. office — or to open an office in the U.S. — from an office abroad. The L-1A visa for intracompany executive or manager transferees is similar to the E-2 visa in that both allow the visa holder to come to the U.S. to set up a new office for the sponsoring company.

If you want the flexibility to change jobs at any time without worrying about whether a company will sponsor you, pursuing one of the green cards (immigrant visas) that do not require a company sponsor would give you that — as well as allow you to remain permanently in the U.S. I’ll talk more about green cards in a bit. But first, I’ll go through the nonimmigrant visa options.

J-1 visa

Many high-tech and biotech employers use the J-1 visa’s research, trainee and intern program categories. The J-1 visa aims to foster knowledge and cultural exchange between the U.S. and other countries by enabling individuals to come to the U.S. for work, training and learning.

The J-1 visa is an attractive option for both participants and employers since there is no annual cap or lottery and are issued year-round. J-1 visas are open to a wide range of occupations and talent, as well as education and experience levels. The J-1 for researchers at private companies is valid up to five years.

You should be aware that many J-1 visa holders must return to their home country to live for at least two years when the J-1 visa expires. Individuals who are unable or do not wish to return to their home country for two years may file for a waiver from the Department of Homeland Security before the J-1 visa expires. As this is a nonimmigrant status, it’s not compatible if you already have plans to seek a green card in the U.S. through adjustment of status.

H-1B visa

Employers use the H-1B visa for an individual to fill a position that requires highly specialized knowledge and skills that’s difficult to find an American worker to fill. The annual H-1B lottery in the spring determines who is eligible to apply for one of the 85,000 H-1B visas available each year. Nonprofit and government research organizations are exempt from the cap and therefore can hire an individual on an H-1B at any time of year.

Private-sector employers who need to fill positions that require highly specialized knowledge and skills next year typically begin recruiting for that position now in case the company needs to sponsor the job candidate for an H-1B. So now is a good time to look for a new work opportunity.

In early October, the U.S. Department of Labor and the Department of Homeland Security, which oversees U.S. Citizenship and Immigration Services (USCIS), placed additional restrictions on H-1B employers. It remains unclear if these new rules will impact the number of registrations for the annual H-1B lottery.

If you’re in a STEM field and seeking work at a tech company, there may be some great new opportunities for you to obtain a “cap exempt” H-1B — one that avoids going through the lottery — by teaching diverse U.S. college student populations and leading an experiential learning project relevant to your future company. Reach out to me directly if this might be of interest.

O-1A visa

The requirements for an O-1A visa for individuals with extraordinary ability are more stringent than for an H-1B, but the O-1A has no annual cap so applications can be submitted at any time of year. An individual must meet three out of eight criteria, which include winning a nationally or internationally recognized award, being featured in a major trade or other publication for work in the field, and writing scholarly articles.

Feel free to join Extraordinary Ability Bootcamp, which is my class that anybody can enroll in to get qualified for an O-1A visa, and you’re welcome to promo code DEARSOPHIE for 20% off enrollment.

Now for your green card options if you’re looking to make this pivot farther in the future and you want to seek permanent residence in the U.S. first:

Diversity green card

If you were born in Slovakia or any other country that had fewer than 50,000 of its native citizens immigrate to the U.S. in the past five years, you can apply for a green card under the Diversity Immigrant Visa Program. Every year, 50,000 green cards are reserved for immigrants from countries that have low rates of immigration to the United States. The diversity program is administered by the U.S. Department of State (DOS) and offers a quick path to a green card.

The registration period for this year’s diversity green card lottery opened on Oct. 7, 2020, and runs through Nov. 10, 2020. DOS randomly selects recipients for the diversity visa in a lottery. Winners are typically announced in May. If you’re selected, you’ll be notified when you can submit your diversity green card application. Make sure to submit your application promptly since DOS selects more candidates than there are visas available. If you’re not selected in the lottery, you can register again the following year.

EB-1A green card

In general, the requirements for green cards are more stringent than those for nonimmigrant visas. Like the H-1B visa, the U.S. imposes caps on the number of green cards issued each year. One of the major advantages of the EB-1A extraordinary ability green card is that an individual can self-petition for one without an employer or a job offer. However, this employment green card has very stringent qualifying requirements and a high evidentiary standard, which can make it more difficult to get; our Bootcamp class mentioned above is a great way to get qualified.

EB-2 NIW green card

Like the EB-1A green card, the EB-2 NIW (National Interest Waiver) green card for individuals of exceptional ability does not require an employer sponsor. However, the eligibility requirements for the EB-2 NIW are less stringent than for the EB-1A. We also cover in Bootcamp how the EB-2 NIW requires candidates to show that their work has substantial merit and national importance.

Let me know if you have any other questions. Good luck in your search for new employment opportunities!

Take care!

—S

Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!

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