3 H-1B Visa Alternatives for Entrepreneurs & Investors

Last Updated: January 15, 2020.

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Are you a founder or entrepreneur looking to work temporarily in the United States?

Or, are you an investor or venture capitalist looking to help expedite the process for an overseas employee to work temporarily in the United States?

Search no further; this article has everything you need to know about obtaining a temporary work visa.

3 H-1B Alternatives

Some of the best H-1B alternatives are the E-2 visa, E-B5 visa, and O-1 visa, as discussed further in this article.

• The E-2 visa for Treaty Investors includes treaty traders and investors who come to the United States under a treaty of commerce and navigation between the United States and the country of which the treaty trader or investor is a citizen or national. This category also includes Australian specialty occupation workers.
• The EB-5 visa for Immigrant Investors is designed for people who invest in U.S. companies.
• The O-1 visa is for individuals with extraordinary ability or achievement who have achieved national or international recognition for achievement in the the sciences, arts, education, business, athletics, or film industry.

Read: Top 6 Immigration Visas for Startups. For now…

Alternative #1: E-2 Visa

Purpose: Investing Capital into a Business

Valid for: 2 Years

Possible to Extend?: Yes

The E-2 visa allows a citizen of any treaty country to come to the United States when investing a substantial amount of capital in a U.S. business. This means you must show at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate position. A treaty country is one with which the U.S. maintains a treaty of commerce and navigation. You can find a list of qualifying countries here. The E-2 visa typically lasts for 2 years before you must renew it.

• A "substantial" amount of capital means any of the following:
  • Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
  • Sufficient to ensure your financial commitment to the enterprise’s success
  • Sufficient to prove that you will successfully develop and direct the enterprise.
  • The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
• Depending on each situation, your employees may also be eligible for this visa.
• Your spouse and any unmarried children under 21 years of age may accompany you into the U.S. by seeking E-2 nonimmigrant classification as dependents. They usually will be granted the same period of stay as you. Additionally, they can fill out Form I-765 to apply for work authorization, which grants them access to any work of their choice.

Can I change status to E-2 visa classification if I’m living inside the United States?

If you are currently in the United States with a lawful nonimmigrant status, you can file Form I-129 to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.

How to renew the E-2 visa

Extensions are unlimited and granted in increments of up to two years each. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated. Additionally, if you travel abroad while on your E-2 visa, you usually will be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129, which occurs when a petitioner files on your behalf for your ability to come to the United States, with USCIS in this situation.

How much does it cost to apply for the E-2 visa?

It costs $460 to file the E-2 visa forms.

What else should I know about working with an E-2 visa?

With an E-2 visa, you may only work in the activity for which you were approved at the time the classification was granted. However, you may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

• Relationship between the organizations is established; AND
• Subsidiary employment requires executive, supervisory, or essential skills; AND
• Terms and conditions of employment have not otherwise changed.

Further, USCIS must approve any substantive change in the terms or conditions of E-2 status. A “substantive change” is any fundamental change in the employer’s basic characteristics. This could be a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization.

• The treaty investor or enterprise must notify USCIS by filing a new Form I-129, complete with the filing fee. They can also simultaneously request an extension of stay for the treaty investor or affected employee. Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification.
• It is not required to file a new Form I-129 to notify USCIS about non-substantive changes. You can contact USCIS to determine whether a change is considered substantive by filing Form I-129 with the filing fee and a complete description of the change.

Alternative #2: EB-5 Visa

Purpose: Investing in a Commercial Enterprise

Valid for: 2 Years

Path to Lawful Permanent Residency?: Yes, with Form I-829

The EB-5 visa is available to investors who actively create or maintain jobs for others in the United States. It’s valid for 2 years, during which time you’ll be a conditional lawful resident. At the end of those two years, you can apply to have your conditional status removed and become a lawful permanent resident.

Read: The Ultimate Guide on How to Get a Green Card

So how exactly do you qualify for an EB-5 visa? Let’s take a look at the requirements:

Commercial Enterprise Requirements

In order to qualify for an EB-5 visa, you must invest in a commercial enterprise. A "commercial enterprise" is a for-profit activity that’s used to conduct business—in other words, it’s a company, business, or business venture. For an EB-5 visa, you’ll need to either:

• Invest in a commercial enterprise that was created after November 29, 1990, OR
• Invest in a commercial enterprise that was created on or before November 29, 1990, IF
  • It’s been purchased and reorganized into a new commercial enterprise, OR
  • Your investment results in a 40% increase in the commercial enterprise’s net worth or number of employees.

You may also need to provide proof that you'll be involved in managing the commercial enterprise. This can be either day-to-day control or having a hand in policy formation.

Job Creation or Maintenance Requirements

Next, you’ll have to prove that your investment in the commercial enterprise creates or maintains jobs. You have the option of investing independently or through a regional center — see the next section for more information about regional centers.

If you’re investing on your own, you must prove that your investment will directly result in the creation of 10 new, full-time positions for qualifying employees. A qualifying employee is basically anybody who is authorized to work in the U.S. (not including you, your spouse, or your children). These 10 employees must be hired directly by the commercial enterprise you’re investing in.

If you’re investing in a regional center, you still have to prove that your investment will create 10 new full-time jobs. The only difference is that you can also count jobs that are indirectly created because of your investment. In other words, anyone who is hired because of your investment, even if they’re not hired directly by the commercial enterprise that you invest in, can count towards those 10 full-time jobs.

You also have the option of investing in a troubled business. A troubled business is any business that has been around for at least 2 years AND has incurred a 20% loss of net worth over the last 12 or 24 months. If you invest in a troubled business, instead of proving that you’re going to create new jobs, you can prove that you’re going to maintain the jobs that already exist. You’ll have to prove that the number of employees in the commercial enterprise won’t go down over the next 2 years.

Investment Requirements

You’ll have to invest capital in the commercial enterprise. Capital can be money, equipment, property, or anything that adds monetary value to the commercial enterprise. If you take out a loan to use in your investment, you have to use your own personal assets as collateral, not the assets of the commercial enterprise.

Normally, you have to invest at least $1 million. If you’re investing in a high unemployment or rural area, though, you’re only required to invest $500,000. A high unemployment area is any area that has an unemployment rate 150% or greater than the national average. A rural area is any area outside of a designated metropolitan statistical area or outside a city or town with a population of 20,000 or more people.

Investing in Regional Centers

If you’re interested in applying for the EB-5 visa, you can find a company or organization to invest in on your own. However, USCIS has also identified specific areas or organizations that you can invest in, called Regional Centers. These are places or organizations in the U.S. that promote economic growth.

Remember how you need to prove that your investment resulted in the creation of 10 new jobs? The benefit to investing in a regional center this is that you can count jobs that were indirectly created because of your investment, not just those jobs that the commercial enterprise created directly.

NOTE: The fact that USCIS has identified regional centers does not mean that they endorse them or that the regional centers are guaranteed to be a good place to invest. Be sure to investigate any business or regional center that you’re considering to make sure that investing there is a financially sound decision.

Apply for an EB-5 Visa: Forms and Filing Fees

There are a few steps you’ll need to take to get your EB-5 visa. Let’s take a look:

• File Form I-526 Petition. This is the first thing you’ll have to do. On this form, you’ll basically prove that you meet the requirements that we mentioned above. The filing fee for Form I-526 is $3,765.
• File Form I-485. You’ll do this once your Form I-526 petition is approved. Form I-485 is the Application to Register Permanent Residence or Adjust Status. You can use this to adjust your status to a conditional permanent resident. The filing fee for Form I-485 is usually $1,140, with an $85 biometric services fee. If you are outside the United States, you can file Form DS-260. Form DS-260 is filed at the U.S. consulate or embassy in the applicant's home nation.

Once your Form I-485 is approved, or once you enter the U.S. with your EB-5 visa, you and your family will be granted conditional permanent residence for two years.

• File Form I-829. This step is optional. If you’d like to stay in the United States after your two years are up, you can file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. You’ll need to file this within 90 days of the two-year deadline. If you don’t file Form I-829 before your two years are up, you could be removed from the United States.

Start: Removal of Conditions Application

Alternative #3: O-1 Visa

The Sciences, Arts, Education Business, & Athletics

Valid for: 2 Years

What is the O-1 Visa?

The O-1 visa is a temporary work visa for very talented nonimmigrants to come to the US. The purpose of the visit must be to further the ability for which the visa was granted.

Before the visa can be obtained, the nonimmigrants U.S. employer must file a petition. After the petition is accepted the nonimmigrant can apply for the visa at a US embassy or consulate.

O-1 Visa Petition Eligibility

The O-1 visa is for nonimmigrants who come to the U.S. who have a great ability or skill in the categories of:

• The sciences
• Arts
• Education business
• Athletics

OR

They, the visa beneficiary, have demonstrated their success through nationally or internationally recognized motion picture or television work.

For the skill/ ability to be recognized it must be at the very top of its field.

Types of O Visas

There are 4 types of O nonimmigrant visas.

• O-1A: for people with great ability in the sciences, education, business, or athletics
• O-1B: for people with great ability in the arts, or great achievement in motion picture/ television industry
• O-2: there are 4 subcategories, but it is for people who accompany O-1 visa holders
  • For people who accompany an artist or athlete (O-1) to help in a specific event or performance
  • For people who are an “integral part” of O-1A and O-1B visa holder’s performances
  • For people who are “essential” to the production of an O-1B’s motion picture or television
  • For people with crucial skills/ experience with an O-1 holder that are crucial to the visa holder’s success and cannot be performed easily by a US worker
• O-3: for spouses or children of O-1 and O-2 visa holders

This information will focus on the requirements for O-1 and O-2 visas only.

O-1 Visa Petition

Most of the time, the visa petition is filed by a U.S. employer. In certain situations, a foreign employer, U.S. agent, or association of U.S. agricultural employers may file the petition.

To get an O-1 visa you, the employer, must file Form I-129.

Note: A duplicate copy of the petition and all supporting documents MUST be submitted when filing.

Required Supporting Documents

Required documents to include in the petition are:

• A photocopy of each petition being filed (When filing for O-2 visa petitions with an O-1.)
• A $460 filing fee
• Evidentiary documents
• A biometrics appointment for the beneficiary of the petition (Failure to attend the appointment may result in delays or denials of the petition. The USCIS will contact the beneficiary to set up this appointment.)
• Form I-94

Breakdown of Evidentiary Documents

O-1A:

• A written consultation from a peer group or labor/ management organization with expertise in the field of the beneficiary.
• A copy of the contract between the beneficiary and employer or summary of oral agreement.
• The itinerary, explanation, and summary of events to be attended by the beneficiary.
• Evidence of the beneficiary’s abilities.
  • This could be:
    • a receipt of award for excellence in field,
    • documentation of beneficiary’s membership in associations that require outstanding achievement,
    • published work, evidence of original work (scholars),
    • major contributions to their field,
    • evidence of high salary within the field,
    • evidence of participation on a panel that judges other’s works in the field,
    • evidence of critical prior employment for organizations with distinguished reputations

For O-1B:

• A written consultation from a peer group or labor/ management organization with expertise in the field of the beneficiary. When the beneficiary’s accomplishments are in motion picture or television industries, individual consultations are required from the relevant organizations.
• A copy of any written contract between employer and beneficiary or summary of oral contract.
• Evidence that the beneficiary has received or been nominated for significant awards. Awards such as an Academy Award, Emmy, Grammy, or Director’s Guild Award. Or at least 3 of the following:
  • Evidence of past or future performances as lead or starring actor in productions/events with distinguished reputations. Reputations can be proved by critical reviews, advertisements, publicity releases, publication contracts, or endorsements.
  • Evidence of national or international recognition for efforts. Established by critical reviews, other material published about the individual in major newspapers, trade journals, magazines, or other publications.
  • Evidence of major commercial or critically acclaimed successes. Proven by title, rating, standing in the field, box office receipts, and other successes reported in publications.
  • Evidence of recognition form organizations, critics, government agencies, or other recognized experts.
  • Evidence of present or future high salary or other compensation for services in relation to others in the field.
  • Evidence of past or future roles as lead or starring role for organizations that have a distinguished reputation.

O-2:

Note: O-2 petitions must be filed with an O-1 petition.

• A written consultation.
  • If support is for an athlete or individual of achievement in the arts, it must be from an appropriate labor organization
  • If support is for an individual of achievement in motion pictures or television, it must be from appropriate labor and management organizations.
• Evidence the O-2 beneficiary is essential to the O-1 beneficiary’s efforts.
• Evidence of the O-2 beneficiary’s history of success with the skill they will be performing.
  • When in the case of a specific motion picture or television production, a significant production must take place outside the U.S. and will now take place in the U.S.. The evidence must then show the O-2 beneficiary’s continuing role is essential.

How long does an O-1 or O-2 visa last?

The initial visa may last up to 3 years. It is then possible to petition for an extension of stay.

The beneficiary may be in the U.S. 10 days before and after the visa validity dates.

Extension of Stay

An extension may last up to 1 year.

To petition a request of an extension of stay, file the Form I-129 again selecting the appropriate categories. A copy of the beneficiary’s Form I-94 and a letter explaining the request must be filed with the petition.

O-1 and O-2 Petition Processing Times

The Form I-129 should not be filed more than 6 months before the date employment in the U.S. is to begin. But no later than 45 days before the employment date.

Processing times vary based on each case, but the beneficiary usually receives the information for their biometrics appointment after 90 days. USCIS will then continue to process the petition before they send their decision in writing.

Note: A request for more information or an interview may delay your visa.

Changing Employers

If you are an O-1 visa holder and you want to change employers, your new employer must file a Form I-129. But only if your original employer was the one to file the I-129 before.

If an agency filed the I-129, an amended petition must be filed with evidence for the new employer and a request for an extension of stay.

TEAM WRITE BY:  Mallory Matheson, Luke Saunders, Tammy Lewis