E-2 Visa Job Change Options & Upgrades

Here's the latest installment of “Dear Sophie,” the advice column penned by a practicing lawyer addressing immigration concerns related to employment within the tech sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, states, “Your inquiries are crucial for disseminating information that empowers individuals globally to overcome geographical limitations and achieve their aspirations.” She adds, “Whether you are involved in human resources, are a business founder, or are seeking employment in Silicon Valley, I welcome the opportunity to respond to your questions in my upcoming column.”

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Dear Sophie:

I am presently in the U.S. under an E-2 visa.

My current employer, a firm headquartered in Slovakia, relocated me to the U.S. to facilitate the establishment of our U.S. branch. What possibilities exist if I wish to explore alternative employment opportunities within the U.S. with a different organization? Is there a viable method to transition my E-2 visa to a different category, such as an L visa? Thank you for your guidance!

—Restless in Redwood City

Dear Restless,

Thank you for submitting your questions. Work-related, nonimmigrant (temporary) visas necessitate employer sponsorship, and these visas are generally linked to both the sponsoring employer and the specific role for which you were hired. We have recently introduced the Extraordinary Ability Bootcamp (use promo code DEARSOPHIE for a 20% discount on enrollment) — a course designed to help you enhance your qualifications should you decide to pursue an O-1A visa, which I will elaborate on further below.

Several visa choices are available should you secure sponsorship from a U.S. company, including the J-1, O-1A, and H-1B visas, as well as various pathways to obtaining a green card. You inquired about the L Visa, but this would only be an option if you had been employed by the new company internationally for a minimum of one year within the preceding three years. The L-1A visa and the L-1B visa both allow multinational corporations to transfer a manager, executive, or employee with specialized knowledge from an international office to a U.S. location — or to establish a U.S. office from an international base. The L-1A visa for intracompany executive or manager transfers shares similarities with the E-2 visa, as both permit the visa holder to come to the U.S. to initiate a new office for the sponsoring company.

If your goal is to have the freedom to change jobs at any time without relying on employer sponsorship, pursuing a green card (immigrant visa) that does not require sponsorship would provide that flexibility – and also allow you to reside in the U.S. on a permanent basis. I will discuss green cards in more detail shortly. However, I will first review the nonimmigrant visa options.

J-1 visa

Numerous companies in the high-technology and biotechnology sectors utilize the J-1 visa’s research, trainee, and intern program options. The J-1 visa is designed to encourage the sharing of knowledge and cultural understanding between the United States and other nations by allowing people to enter the U.S. for employment, training, and educational opportunities.

The J-1 visa represents a desirable choice for both those participating in the program and their employers because it doesn’t have an annual limit or require a lottery system, and visas are granted throughout the year. A broad spectrum of professions and skill sets, along with varying levels of education and experience, qualify for the J-1 visa. For researchers working within private companies, the visa can be valid for as long as five years.

It’s important to note that a significant number of J-1 visa recipients are required to reside in their country of origin for a minimum of two years following the J-1 visa’s expiration. Those who are unwilling or unable to fulfill this two-year home residency requirement can apply for a waiver from the Department of Homeland Security prior to the visa’s expiration date. Because this is a nonimmigrant visa classification, it is not suitable for individuals who intend to apply for a green card in the U.S. through adjustment of status.

H-1B visa

The H-1B visa allows companies to employ individuals whose work demands a high level of specialized expertise and abilities that are not readily available within the American workforce. Each year, a lottery is conducted in the spring to determine eligibility for the 85,000 H-1B visas made available. Certain organizations, including nonprofit and governmental research institutions, are not subject to this annual limit and can therefore hire individuals under the H-1B visa program throughout the year.

Companies in the private sector that anticipate needing to fill roles requiring specialized skills in the coming year often initiate their recruitment efforts now, in preparation for potentially sponsoring a job applicant for an H-1B visa. Consequently, this is an opportune moment to explore new career possibilities.

In early October, the U.S. Department of Labor and the Department of Homeland Security, the agency responsible for U.S. Citizenship and Immigration Services (USCIS), implemented further regulations affecting H-1B employers. The potential effect of these new rules on the volume of applications received for the yearly H-1B lottery is currently unknown.

Individuals working in STEM fields who are interested in employment with a technology-focused company may find new avenues to secure a “cap exempt” H-1B visa – one that bypasses the lottery process – through opportunities involving instruction of diverse student groups at U.S. colleges and the direction of practical learning projects related to their prospective employer. Please contact me directly if you would like to learn more about this possibility.

O-1A visa

Securing an O-1A visa, designed for those demonstrating extraordinary ability, involves more demanding criteria compared to the H-1B visa. However, a significant advantage of the O-1A is its lack of an annual limit, allowing submissions throughout the year. To qualify, an applicant needs to satisfy at least three of eight established benchmarks, such as receiving a prestigious national or international award, gaining prominent recognition in leading industry publications for their professional achievements, or authoring scholarly publications.

If you are interested in preparing for the O-1A visa process, consider enrolling in the Extraordinary Ability Bootcamp. This course is available to anyone seeking qualification, and a 20% discount is offered with the promo code DEARSOPHIE.

The following information outlines potential pathways to permanent residency in the U.S. for those considering this option at a later stage:

Diversity green card

Individuals born in Slovakia, or any other nation with less than 50,000 of its nationals immigrating to the U.S. during the last five years, may be eligible to apply for a green card through the Diversity Immigrant Visa Program. Annually, 50,000 green cards are allocated to individuals originating from countries experiencing low levels of immigration to the United States. This diversity initiative is overseen by the U.S. Department of State (DOS) and presents an expedited route to obtaining a green card.

The enrollment timeframe for this year's diversity green card lottery commenced on October 7, 2020, and concludes on November 10, 2020. The DOS utilizes a lottery system to randomly choose recipients for the diversity visa. The announcement of winners generally occurs in May. Should you be chosen, you will receive notification regarding when you can submit your diversity green card application. It is important to submit your application without delay, as the DOS identifies more potential candidates than the number of visas available. If you are unsuccessful in the lottery, you have the option to register again in the subsequent year.

EB-1A green card

The criteria for obtaining a green card are typically more demanding than those for temporary visas. Similar to the H-1B visa process, the United States limits the total number of green cards granted annually. A significant benefit of the EB-1A extraordinary ability green card is the ability to file the petition independently, without needing sponsorship from an employer or a pre-arranged job offer. Nevertheless, this employment-based green card has exceptionally strict eligibility criteria and requires a substantial amount of supporting evidence, potentially making the application process challenging; the Bootcamp program previously discussed can be a valuable resource for meeting these qualifications.

EB-2 NIW green card

Similar to the EB-1A green card, the EB-2 NIW (National Interest Waiver) green card is available to those with exceptional skills and does not necessitate an employer’s sponsorship. Nevertheless, the criteria for qualifying for the EB-2 NIW are somewhat less demanding than those for the EB-1A. Our Bootcamp program also details how the EB-2 NIW necessitates applicants to demonstrate that their contributions possess significant value and importance on a national level.

Please feel free to reach out if you require further clarification. We wish you success in your pursuit of employment possibilities!

Best regards!

—S

Do you have an inquiry? Please submit it here. We maintain the right to modify your submission for improved clarity and/or brevity. The details presented in “Dear Sophie” are for informational purposes only and should not be considered legal counsel. For a comprehensive understanding of the limitations of “Dear Sophie,” please consult our complete disclaimer available here. You may reach Sophie directly through Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, can be found on all popular podcasting services. She is currently reviewing applications for potential guests!