The H-1B program is one of the most sought-after options for nonimmigrant visas among professionals seeking to work in the United States. However, the lottery process designed to select individuals whose employers may submit petitions requesting the H-1B classification has left many disappointed each year. The United States Citizenship and Immigration Services (USCIS), the agency that adjudicates the H-1B petitions, typically receives hundreds of thousands more registrations than there are visa numbers available during the lottery filing window. For those who aren't selected, what are some of the alternative pathways to employment in the U.S.?
Employment with a Cap-Exempt H-1B Employer
Individuals who were not selected in the H-1B lottery may seek employment with cap-exempt employers as an alternative. Cap-exempt employers include institutions of higher education (colleges and universities), nonprofit organizations affiliated with such institutions, nonprofit research organizations, and government research organizations. These employers are not subject to the annual H-1B limit (“cap”), allowing them to sponsor H-1B visas at any time during the year without being constrained by the lottery system. This pathway provides a significant advantage, eliminating the uncertainty and timing restrictions associated with the H-1B cap.
Furthermore, employment with cap-exempt employers frequently allows individuals to participate in impactful research, academic, or public service projects, providing both professional fulfillment and valuable career development. By focusing on cap-exempt employers, foreign nationals can improve their chances of securing H-1B status and advancing their careers in the United States without the limitations of the H-1B lottery.
Another consideration is if the foreign national is employed at a cap-subject entity, but their work takes place at a cap-exempt employer's location. In such cases, if their work at the cap-subject employer “predominantly furthers the essential purpose, mission, objectives or functions” of the cap-exempt entity—even if the employer is a cap-subject entity—an exemption from the H-1B cap may apply. This can expand the opportunities for obtaining H-1B status.
The H-1B1 Visa for Chilean and Singaporean Nationals
As a result of the Chile and Singapore Free Trade Agreements established in 2004, citizens from these countries can utilize the H-1B1 visa category for employment in a “specialty occupation.” While this program is capped at 1,400 visas for Chilean citizens and 5,400 for Singaporean citizens, it provides employers the opportunity to petition for these individuals without competing against beneficiaries from other countries for the H-1B cap. It is important to note that the use of H-1B1 visas still counts toward the overall H-1B cap.
The qualifications for the H-1B1 category closely resemble those of the H-1B category; applicants must possess at least a bachelor's degree or higher (or its equivalent) and be engaged in an occupation that requires at least a bachelor's degree or its equivalent. However, there are two significant differences between the H-1B1 and H-1B categories. First, unlike the H-1B, the H-1B1 visa does not allow for dual intent; beneficiaries must demonstrate that they do not intend to remain permanently in the United States. Second, nationals of Chile and Singapore can apply for their H-1B1 visas directly at a U.S. consulate, bypassing the need for an I-129 petition to USCIS.
However, if an H-1B1 holder seeks a change of status, an extension of stay, or wishes to change employers while in the United States, their employer will need to file an I-129 petition with USCIS, and there is currently no Premium Processing (the USCIS expedited service) available for H-1B1 petitions. Given the restrictions on dual intent, careful planning is essential for those wishing to maintain employment under this category while also considering permanent residency. Consulting with an experienced immigration attorney is advisable to develop an effective strategy.
Finally, the H-1B1 category allows for an initial period of employment and admission for one year, which can be extended in one-year increments without the six-year limitation that applies to the H-1B category.
Options For F-1 Students
For many students in F-1 status, the most immediate option, if not selected in the lottery, is to go back to school or utilize any remaining time on their Optional Practical Training (OPT) or STEM OPT. Although going back to school requires a significant investment, pursuing a higher degree can offer several advantages. Not only does it extend employment opportunities, but possessing a Master's degree or higher can also open additional avenues for both the H-1B program and permanent residency.
Enrolling in an advanced study program may also qualify students for additional OPT time and, in some instances, Curricular Practical Training (CPT). OPT is temporary employment/training directly related to the student's course of study, while CPT is also a form of practical training directly related to the student's major area of study but must be a part of the school's established curriculum. Students majoring in STEM fields are eligible for an additional 24 months in OPT. In addition to the employment and training benefits of going back to school, completing a higher degree can provide the student with more time, allowing them another shot at the H-1B lottery under both the Regular Cap and the Master's Cap.
The TN Status for Canadian and Mexican Citizens
For citizens of Canada and Mexico, the TN program may be an appealing alternative to the H-1B. TN status is afforded to Canadian and Mexican citizens who seek to enter the United States to engage in professional business activities as defined by the U.S.-Mexico-Canada Free Trade Agreement (USMCA), formerly known as the North American Free Trade Agreement (NAFTA). Professional activities are defined in the USMCA as activities at a professional level that require at least a bachelor's degree or appropriate credentials that would demonstrate status as a professional. Thus, for many foreign nationals with Canadian or Mexican citizenship who were not selected in the H-1B lottery, the TN would be an attractive alternative for employment in the United States.
A crucial distinction between the TN and H-1B is that the TN does not permit “immigrant intent,” whereas the H-1B does. This important distinction merits a detailed discussion with an immigration attorney, particularly for those considering permanent residency in the future. Despite this limitation, the TN classification offers several benefits to applicants. First, there is no cap on the number of TN visas issued. Second, the TN application can be filed at any time during the year. Third, the TN can be pursued without filing a petition with USCIS or a Labor Condition Application, which can expedite approval and significantly reduce the costs and obligations involved. Fourth, there is no total maximum stay limit for TN holders, unlike the six-year limit of stay in the H-1B classification. By pursuing the TN visa, you also help free up H-1B slots for other foreign nationals.
The E-3 Visa for Australian Nationals
Another program akin to the H-1B but specific to nationals of Australia is the E-3 visa. The E-3 visa is specifically for nationals of Australia who wish to work in specialty occupations. To qualify, the foreign national must have at least a U.S. bachelor's degree or higher (or a foreign degree equivalent) in a field directly related to their position. Further, the Petitioner must show that the position requires at least a bachelor's degree in a related specialty field. Similar to the H-1B, there is a cap on the number of visas available each year. For the E-3, this cap is 10,500 visas per year, and historically, it has never been filled since the program began. Similar to the TN category, E-3 visa applicants are not allowed to have immigrant intent, meaning that they must demonstrate an intent to depart the United States upon termination of their E-3 status.
One advantage for E-3 visa holders is that their spouses are entitled to the dependent E-3 visa classification, which allows them to work incident to their status. Spouses of H-1B holders, on the other hand, can only work after the principal has reached a specific stage in the permanent residency process.
The L-1 Intracompany Transferee Visa
For those with a work history at an international company with a corporate relationship to the U.S. petitioning entity, the L-1 visa may be an option. L-1 status requires that the foreign national must have worked for a company outside the U.S. for a continuous period of one year within the three years immediately prior to their application for admission into the U.S. The required foreign employment must have been with a company that is the parent, branch, affiliate, or subsidiary of the petitioning company in the U.S., in a capacity that requires specialized knowledge, or as a manager or an executive. The position in the U.S. must also require specialized knowledge or be at a managerial or executive level. Although the requirements for L-1 status can be complex, they can be navigated by sending employees to work abroad or opening new offices in the U.S. to facilitate the existence of the required corporate relationship.
The O-1 Visa for Individuals with Extraordinary Ability
Extraordinarily talented individuals whose expertise has reached national and international levels may pursue O-1 status as a potentially viable option. The O-1A visa category is reserved for individuals who have demonstrated sustained national or international acclaim in the sciences, education, business, or athletics. The O-1B category is reserved for individuals who have demonstrated a high level of achievement in the arts, and the O-1B (MPTV) is specifically for those with extraordinary achievement in the motion picture or television industry.
To qualify for O-1 status, beneficiaries should clearly define the field of their extraordinary talent or skill and provide extensive supporting documentation to corroborate their achievements. An essential element of the O-1A category is that the foreign national must be “one of a small percentage who have risen to the very top of their field of endeavor.” This could be particularly useful for scientists, Ph.D. holders, and students who have extensive accomplishments in the field. The O-1B standard for the arts, however, is defined differently and is lower than that applied in O-1A cases. It requires a “high level of achievement” evidenced by “a degree of skill and recognition substantially above that ordinarily encountered,” signifying that the individual is prominent, renowned, leading, or well-known in their field. Similarly, the O-1B (MPTV) requires a “record of extraordinary achievement” in the motion picture or television industry, evidenced by a high level of accomplishment recognized as outstanding, notable, or leading in the field. The O-1B category may be applicable to musicians, performers, artists, journalists, architects, chefs, and a number of other professions that may be perceived as “art.” It is essential to have a realistic understanding of the types of evidence needed to demonstrate eligibility for this category. Although the standards are quite high, with the right supporting documentation, this option can be a viable alternative for highly qualified foreign nationals.
E-1/E-2 Treaty Trader and Investor Visas
The E-1 and E-2 visa may be appropriate for business owners and employees who are nationals of countries that have entered into treaties of commerce with the U.S. The E-1 category is reserved for Treaty Traders, while the E-2 category is reserved for Treaty Investors. Once it is established that the U.S. employer is a treaty trader or treaty investor per the regulations, the employment offer must involve the foreign national either developing and directing the enterprise, possessing skills necessary to perform services essential to the company's operations, or filling either a supervisory or managerial role. Since E-1 and E-2 applications can be filed directly at a U.S. consulate, they may be approved faster than other visa types that require USCIS approval, depending on the country where the individual plans to apply.
Opportunities Through Marriage or Direct Green Card Sponsorship
Marital relationships can also facilitate opportunities for work authorization depending on the visa status of the spouse. For instance, spouses of L-1 E-1, E-2, and E-3 visa holders are authorized to work incident to their status. Spouses of H-1B status holders may be eligible for work authorization if the principal is at a specific stage of their permanent residency process.
Marriage to a United States Citizen (USC) or even a legal permanent resident (LPR) opens additional pathways to employment authorization. Since visa numbers are always available for spouses of USCs, they are able to concurrently file their petition establishing their marital relationship with their application for adjustment of status to that of legal permanent resident, which allows them to also apply for temporary employment authorization. Likewise, if the priority dates support the concurrent filing of both the spousal petition and the adjustment of status application for the spouse of an LPR, or if there is an approved or pending spousal petition with a priority date that has been reached according to the Visa Bulletin, the foreign national spouse may submit an application for adjustment of status along with a request for temporary work authorization. In some limited circumstances, direct green card sponsorship through an employment-based process, such as a Labor Certification (PERM), or through a self-petition may also be an alternative.
These are just some of the options that may be available to foreign nationals not selected in the H-1B lottery. It is important to remember that there are options beyond the H-1B visa.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.