Didn’t Make the H-1B Cut? Here are Some Alternatives

As previously reported, U.S. Citizenship and Immigration Services (USCIS) reached the congressionally mandated H-1B cap, including the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption for Fiscal Year 2016. USCIS received nearly 233,000 H-1B petitions during the filing period, which began April 1.

For the many employers that did not make the cut, this means waiting until next year to try again. Waiting until October 2016 to hire foreign workers is not only burdensome, but often times impossible for many employers. Fortunately, there may be some alternatives. The following are some additional visa options that might be available for employers and their prospective foreign national workers who missed out on this year’s H-1B:

  • L-1 Intracompany Transferee: The L-1 visa is for employees of multinational corporations who wish to come to the U.S. to work for a U.S. parent, branch, or subsidiary corporation. In order to obtain an L-1 visa, the employee must either be coming to the U.S. in a managerial or executive capacity or have specialized knowledge about the company. The employee must also have worked abroad for the employer corporation continuously for one year out of the past three years prior to coming to the U.S.
  • E-1/E-2 Treaty Trader/Investor: The E-1 and E-2 categories are for treaty traders and investors, respectively. The E visa is only available to nationals of countries that have commercial treaties with the United States and are engaged in “substantial trade” between the U.S. and home country.
  • E-3 Australian Specialty Worker: The E-3 is very similar to the H-1B. The E-3 is available to Australian nationals only.
  • TN Professionals: This option is available exclusively to professionals from Canada and Mexico who will be working in specific occupations, listed in Appendix 1603.D.1 of the North American Free Trade Agreement (NAFTA).
  • H-1B1 Visa for Singaporean or Chilean Citizens: The H-1B1 is very similar to the H-1B, but it is not subject to the 65,000 cap for general-category or the 20,000 cap under the advanced degree exemption. Instead, 1,400 H-1B1 visa are available for Chileans, while 5,400 are set aside for Singaporean nationals.
  • O-1 Visa:  This option is for individuals who have extraordinary abilities in certain fields, as evidenced by meeting a set number of regulatory criteria.  This is a very high standard to meet and the O-1 visa is appropriate only for individuals who have garnered very significant accomplishments in their field.
  • OPT STEM Extension: Certain students in OPT status are eligible for an additional 17-month OPT extension if they have received a degree included in the STEM Designated Degree Program List and they will be working for an employer enrolled in E-Verify.
  • J-1 Visa: This visa is appropriate for work or training in the U.S. for certain occupations.  Note that certain individuals in J-1 status become subject to a two-year home residency requirement before they may subsequently obtain H-1B status or permanent residence.
  • Permanent Immigration Options: There may also be options for employers to offer permanent positions to foreign workers under one of the employment-based categories. Immigrant petitions do typically take much longer than nonimmigrant petitions, though they present a viable option for many employers.

Although not all H-1B eligible employees fit into one of the visa categories above, these alternative visas often prove to be good back-up options for employers and their foreign national workers.

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