Alternatives to H-1B Visa

Alternatives to H-1B Visa

H-1B Quota (FY 2019)

USCIS received 190,098 H-1B Quota petitions for the fiscal year 2019 in the first week of April 2018. On April 11, 2018, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the Master’s Cap exemption. As USCIS will issue about 85,000 H-1B visas under the FY-2019 H-1B quota, there is a 44% chance of obtaining an H-1B visa through the lottery. If an Employer’s H-1B petition is not selected, and the Employer is attempting to employ a foreign candidate, there are other alternative routes to secure work authorization in the United States. Please find below a discussion of the various alternative visas that are available.

H-1B work with Cap-Exempt Employees:

H-1B petitions for Beneficiary’s employed at institutions of higher education, selected non-profits and government research organizations are exempt from H-1B cap. An employer can file a cap exempt H-1B petition for a Beneficiary to work “at” an exempt institution. As such, employers can claim cap exemption for a Beneficiary who will physically perform their job at an exempt institution.

H-1B1 for Chilean and Singaporean Citizens:

The U.S. Chile Free Trade Agreement and the U.S. Singapore Free Trade Agreement creates an H-1B1 visa for citizens from Chile and Singapore. The intended recipient of the H-1B1 visa must: 1) be a citizen of Singapore or Chile; 2) have a valid job offer from a U.S. company to be employed in a specialty job occupation; and, 3) have a certified LCA filed under the H-1B1 Chile or Singapore category. The Applicant may directly apply at the U.S. Consulate overseas for the H-1B1 visa.

Green Cards in the third Employment Based category:

There is a common misconception that the Beneficiary must be in the United States in order for the Employer to begin the Green Card process for the Beneficiary. Employers can complete the entire Green Card process while the Beneficiary is outside the United States. Individuals who are born in countries, other than China, India and Philippines and who are 1) skilled workers (minimum experience required is two (2) years); 2) Unskilled workers (requiring less than 2 years of experience) or, 2) professionals who possess a Bachelor’s Degree, may be eligible for an employment Green Card in a little over 12 months. The employment Green Card process has three distinct stages: PERM, I-140, and Immigrant Visa Interview. In the first stage, the Petitioner must carry out recruitment which takes an average of 3-4 months. After the recruitment is complete, the Petitioner files the PERM application with the Department of Labor (DOL). The DOL processes and is currently certifying the PERM application within 5 months from the date of filing. During the second stage, the Employer files the Immigration Application with USCIS under Premium Processing which takes 2 weeks to be adjudicated. The Employer must select consular processing for the Immigration Application. Once the petition is approved, USCIS sends the petition to the National Visa Center (NVC) for further processing. In the third stage, the NVC normally processes and transfers the application to the US Consulate overseas in about two to three months. Thereafter, the US Consulate will schedule the Beneficiary for an immigrant visa interview. If all goes well at the interview, the Beneficiary will be approved for the Green Card and will have six months to enter the US. These processing times are subject to change and must be checked regularly for the most current information.

F-1 Optional Practical Training (OPT) Extension or F-1 Curricular Practical Training (CPT)

Many H-1B cap candidates are F-1 student visa holders who are already in the United States and there may be ways for them to continue to stay on F-1 status under valid work authorization. Optional Practical Training (OPT) holders who have completed a STEM degree (a degree in science, technology, engineering, and mathematics (STEM)) are eligible to apply for a 24-month STEM OPT extension. There are certain requirements to qualify for the 24-month STEM OPT extension (the employer must be E-Verified company, the extension must be filed before the current OPT expires, etc.). Additionally, certain schools and F-1 degree programs allow an F-1 student to engage in employment related to their field of study under the Curricular Practical Training (CPT) program. CPT is any alternative work/study, internship, cooperative education, or other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school. CPT must be an integral part of an established curriculum. Availability and eligibility varies by school and program; but when available, the F-1 CPT option may allow for continued employment authorization.

J-1 Visa

The Exchange Visitor (J) non-immigrant visa category is for individuals approved to participate in work-and study-based exchange visitor program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training. In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates public and private entities to act as exchange sponsors. J-1 non-immigrants are therefore sponsored by an exchange program that is designated as such by the U.S. Department of State. These programs are designed to promote the interchange of persons, knowledge, and skills, in the fields of education, arts, and science and to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. When you agree to participate in an Exchange Visitor Program and your program falls under certain conditions, you will be subject to the two-year home-country physical presence (foreign residence) requirement. This means you will be required to return to your home country for two years at the end of your exchange visitor program, before you can change or adjust status to another non-immigrant or immigrant visa category. An exchange visitor is subject to the two-year home-country physical presence requirement if the following conditions exist:

  • Government funded exchange program - The program is financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor's nationality or last residence;
  • Graduate medical education or training - The exchange visitor entered the United States to receive graduate medical education or training;
  • Specialized knowledge or skill: Skills List - The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country, as shown on the Exchange Visitor Skills List. See the Exchange Visitor Skills List 2009.

L-1A Visa:

The L-1A nonimmigrant visa allows a U.S. Employer to transfer an executive or manager from its affiliated foreign offices to its offices in the United States. The intending non-immigrant must have been working in an executive or managerial capacity for the foreign company for at least 1 year out of the past 3 years.

L-1B Visa:

The L-1B visa is designed to transfer professional employees with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. The intending non-immigrant must have been working in an executive or managerial capacity for the foreign company for at least 1 year out of the past 3 years.

O-1 Visa: Individuals with Extraordinary Ability or Achievement:

The O-1 nonimmigrant visa is for an individual who possesses extraordinary ability in the sciences, arts, education, business or athletics or who has demonstrated a record of extraordinary achievement in the motion picture or television industry. To qualify for an O-1 visa, the Beneficiary must demonstrate extraordinary ability by sustained national or international acclaim or must meet three of the following: high salary, authorship of scholarly articles, receipt of nationally or internationally recognized prizes, published material in professional publications, etc.

TN Visa: For Canadian or Mexican Citizens:

The North American Free Trade Agreement (NAFTA) creates special economic, trade, and immigration benefits for United States, Canada, and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged business activities for U.S. or foreign employers. To qualify for the TN visa, the Applicant must meet the following requirements:

  • Be a citizen of Canada or Mexico;
  • The profession in which the Applicant is intending to be employed appears on the NAFTA regulations contained in Appendix 1603.D.1 to Annex 1603 of the NAFTA;
  • Position requires a NAFTA professional;
  • Applicant will work in a prearranged full time or part time job for the employer; and,
  • Applicant meets the education or experience required by the profession.

E-1 Visa:

The E-1 nonimmigrant classification allows a national of a treaty country to be admitted to the United States solely to engage in international trade on his or her own behalf. See US Department of State's list of Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation. This type of nonimmigrant visa permits foreign nationals, key managerial and specialist employees with highly specialized skills from treaty courtiers to “develop and direct” import or export, a significant amount of international trade (of goods, services or technology) between their own country and the US. The key is that the volume of such trade must be sufficient and “substantial” to justify the presence of the visa holder in the US for the purpose of managing said trade. There is no set minimum level of trade which is considered “substantial” but at least 50% of the trader's exports/imports must be to or from the USA. Lastly, the trader must have a past history of conducting trade between the US and the treaty country.

E-2 Visa:

The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business. See US Department of State's list of Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation. This visa must generally be renewed every two years, but there is no limit to how many times one can renew. The investment must be "substantial." For new startups, the investment must be large enough to start and operate the business. The investment will not be considered substantial if it is not large enough to capitalize the venture. E-2 visas are also available to non-investor employees of the business, as long as the persons are of the same nationality as the investor and are destined for a role in the US business that is either executive/supervisory or requires specialized skills that are essential to the efficient operation of the US enterprise.

E-3 Visa for Australian Citizens:

Australian citizens can apply for E-3 visa which would allow them to live and work in the United States. To qualify for an E-3 visa, the Applicant must demonstrate the following:

  • Citizenship of Australia;
  • Legitimate offer of employment in the United States in a position that qualifies as a specialty occupation;
  • Necessary academic or other qualifying credentials; and,
  • Certified Labor Condition Application (LCA).

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