Understanding The Alternatives To H1-B Visas In The US

Do you wish to know the available alternatives to H1-B visas? This post is just for you. While some people are restricted to H1-B visas, others are fortunate enough to have other options they can explore. These options are an escape route because many H1-B applicants don’t make it through the lottery every year.

You don’t have to give up hope if you or your employees fail the H1-B visa application. At the beginning of this year (2024), the DHS issued a new rule to reform the H1-B lottery process, moving from an employer-focused to a beneficiary-focused selection.

This change may increase selection rates, but high H1-B visa demand is expected to remain above the annual 65,000 numerical limit (cap). So, if your H1-B employee isn’t selected this year, be ready to talk about alternatives to H1-B visas. The H1-B visa is one of the highly sought-after work paths to the United States.

If you are fortunate enough to be chosen for the H1-B visa lottery, you will then need to file a detailed H1-B petition to prove your ability to work in the United States based on the H1-B regulations.

Given this uncertainty and the fact that the chances of getting an H1-B visa are slim at best, it is advisable to consider alternatives to H1-B visas. In this guide, we will highlight various alternatives to H1-B visas for those who wish to come to the United States to work.

Overview of the H1-B visas

H1-B visas are non-immigrant visas that allow skilled workers worldwide to work in a particular specialty occupation. It is a relatively common visa type that most overseas nationals will apply for, provided that they have been offered a qualifying job by an employer based in the United States and that they are suitably skilled or experienced.

To be eligible for H1-B visas, an overseas national must first apply for and receive an offer of H1-B employment. After that, they will need to find an employer in the United States with suitable job openings willing to sponsor the foreign worker and who can apply for an H1-B visa on the worker’s behalf.

The prospective employer and the employee must go through a multi-step application process. First, the prospective employer will apply a labor condition to the US Department of Labor (DOL) on behalf of the US employer.

After that, the prospective employee will submit a petition to USCIS and a visa application for the prospective employee at a US Embassy or consulate (provided the petition is accepted).

Unfortunately, while there is a limit of 85,000 specialty occupation petitions per year (with 20,000 for MSc holders), the number of petitions submitted yearly is often more than double that number.

As a result, when you exceed the 85,000 threshold in any given fiscal year, your petitions are entered into a computerized lottery to determine which ones will be considered by USCIS.

H1-B visa exemptions

H1-B petitions submitted by higher institutions, entities not working for profit related to schools, and some research bodies not made for profit are exempt from the visa lottery. A cap-exempt case can be made even if an H1-B employer doesn’t meet these criteria.

However, an H1-B worker in a cap-exempt case will be placed at the employer’s location. These exempted bodies are prime destinations for overseas nationals seeking to work in the US because the petitions are processed immediately without a time limit.

Available alternatives to H1-B visa

The available alternatives to H1-B visas allow you to work in the USA even if you weren’t chosen in the H1-B visa lottery. These work visas are generally nonimmigrant classes that allow you to live in the US for some time.

1. The L-1 visa.

An L-1 visa, also known as an L-1 intra-company transferor visa, is an H1-B visa alternative designed to bring managers and executives at the managerial level into the United States to work as an L-1 visa holder. To be eligible for an L-1 visa, you must be an employee of a multinational company with an office, branch, or subsidiary in the US.

You must have worked for your sponsoring employer overseas for at least one year in the last three years. In addition to managers and executives, individuals with specific specialized knowledge or skills can also be eligible for the L-1 visa. You can work in the US as an L-1 visa holder and bring your spouse, dependent children, and other family members with you.

Your spouse can work with permission as an L-2 Visa holder, and you can extend your stay for 5 to 7 years. The L-1 visa also allows you to obtain a green card. This alternative to an H1-B visa allows you to work in the US with dual intent. A foreign worker with a dual intent visa can apply for US permanent residence without breaking the law.

You can maintain your L-1 status as long as you continue to work for your sponsoring employer, but you are not allowed to establish your own company in the US as long as you are on an L-1 visa.

2. The E-visas.

The E-type visa classification can be divided into E-1, E-2, and E-3.

• E-1 visa.

The E-1 visa is a visa that allows foreign traders to work in the United States as foreign nationals. It is a visa that can be used to work in the USA as a foreign national or as an employee of a trading company from a treaty country of the United States.

An E-1 visa can only be used to work for a treaty trader company. To be eligible for an E-1 visa, an applicant must have substantial and principal trade with the US. The visa must be valid for at least two years and can be renewed every two years.

• E-2 visa.

The E-2 visa is another alternative to the H1-B visa for citizens from the treaty countries who wish to invest and set up a business in the US. The E-2 visa requires substantial capital investment and direct management of the US business. With the E-2 visa, you can bring your family to the US, and your spouse can work in the US.

The E-2 visa is a non-immigrant visa classification. The direct business investment of an E-2 investor visa increases your chances of green card approval.

• E-3 visa.

This is a non-immigrant visa, which is an alternative to the H1-B visa. It is only available to Australian workers in the following specialty occupations:

1. Information Technology.
2. Healthcare.
3. Research.
4. Management.

You must have at least a bachelor’s degree and be sponsored by an employer in the United States. The E-3 visa does not go through an annual lottery like the H1-B visa. Your employer will need to file a labor certification before you can apply for the visa.

The labor certification is issued by the United States Department of Labor and shows that no qualified worker is available in the United States to fill your position. Because E-3 is not an immigrant classification, you will need to renew your E-3 visa every two years to continue working in the United States.

3. O-1 visa.

The O-1 visa is given to individuals who have achieved excellence in their field at a national or international level. It is commonly referred to as the “O-1” visa. O-1 visas are issued to scientists, artists, educators, business professionals, athletes, and researchers.

An O-1 visa is issued to an individual who meets the criteria of being “a person of exceptional ability or achievement.” O-1 visa holders are professionals and often among the best in their field. You can prove your O-1 visa eligibility by showing exceptional accomplishments, honors, and awards you have received in your field of interest.

A derivative visa, also known as an O-3 visa, is issued to dependents, including children and spouses. An O-1 visa can be issued for an initial stay of up to 3 years. After the initial stay of 3 years, you can apply for 1-year or 3-year extensions indefinitely.

4. OPT option.

Optional practical training (OPT), or OPT employment authorization, is a one-year work permit available to full-time international F-1 students who have completed at least one academic year of full-time study and plan to pursue employment in the US in their core field of study. If you qualify, this is a viable alternative to the H1-B visa, which you can explore temporarily.

In essence, the OPT permits US college graduate students from abroad to obtain one year of employment based on practical training in their field of study as part of F-1 student visas. Eligible applicants can apply for up to one year of OPT employment authorization before and/or after completing their full-time studies.

The OPT employment permit can be extended by up to 24 months if the graduate is employed in certain STEM jobs and the employer is part of the e-verify online employment verification program.

5. EB-5 visa.

The EB-5 investor visa program grants green cards to immigrants who invest and create jobs in the United States. To be eligible for an EB-5 visa, you must invest at least $500,000 in a US business that creates 10 new full-time American jobs.

Once you have obtained an EB-5 visa, you, your spouse, and minor unmarried children may be issued a two-year conditional green card. Once you meet the program’s requirements, this green card can be converted into a lawful permanent resident.

You do not need to be sponsored by an American employer to apply for an EB-5 visa in the US. You can apply for an immigrant visa on your own. The EB-5 visa is the quickest way to get a green card because you do not need to undergo labor certification. If you are in the US, you can also file your petitions at the same time.

To select the right investment project for your permanent US residence, you must consult with professionals in the EB-5 industry, such as an immigration lawyer, financial advisor, securities specialist, and economist. There are many other alternatives to the H1-B visa. Talk with an immigration lawyer to learn more about these alternatives.

Get help!

The H1-B visa application process is complex and uncertain. Understanding the details of available alternatives to the H1-B visa is crucial to avoid losing out on the process. At Gehi and Associates, we understand how delicate your situation can be and how important it is to pick the right alternative to an H1-B visa.

Over the years, we have helped many clients achieve outstanding outcomes in their cases. Contact us today to get the right legal support for your case!