H1B Visa Alternatives

If you’re reading this blog post, odds are that you missed the H-1B cap and are looking for H1B visa alternatives. If you didn’t get selected in the lottery all hope is not lost. You may still be able to qualify under one of the other visa categories.

The odds of not getting selected in the H-1B lottery are increasing every year. Last year USCIS received more than 230,000 H1B applications for the 85,000 that are available nationally every year. Numbers haven’t been released for this year as of the time that I am writing this blog post. My educated guess is that this year you probably had the same one in three chance of being selected in the lottery as last year.

I wrote about H1B visa alternatives a couple of years ago in another one of my blog posts. The following is an expanded and updated list of potential alternatives to look at if you didn’t get selected in the H-1B lottery:

L-1A for executives and managers. L-1A status can be issued to executives and managers who will come to the United States to work in an Executive or Managerial capacity for the United States branch, subsidiary, parent or affiliate office of a foreign company. The immigrant must have worked abroad as an executive or manager for the foreign company for at least one consecutive year within the three years immediately preceding his or her admission to the United States.

L-1B for workers with “specialized knowledge”. The LB-visa is issued to workers with specialized knowledge of your company’s product, service, research, equipment, techniques or management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. An example of an L-1B worker would be an employee who has proprietary knowledge of a process in your factory overseas who is applying that proprietary knowledge for the US company. Like the L-1A, the L-1B also requires that the employee have worked for the overseas parent, branch, subsidiary or affiliate for one of the past three years immediately preceding his or her admission into the United States.

E-1 treaty trader. This visa is used by foreign nationals, from countries that have requisite trade treaties with the United States, who will conduct “substantial” trade between the United States and their country of nationality. The trade must also be principally between the United States and the E-1 applicant’s country of nationality. There is no clear-cut definition of how much trade is required to be considered substantial. US immigration regulations state the following regarding substantial trade: “Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.”

E-2 treaty investor. The visa is used by foreign nationals who are developing or directing an enterprise in which they have invested or actively in the process of investing a “substantial” amount of capital. As with the E-1 treaty trader visa, the E-2 also does not have a clear-cut definition of how much investment is required to be substantial. US immigration regulations state: “Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one; Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.”

E-3 is available only to citizens of Australia. The requirements are similar to those of the H-1B. The Australian national should work in a specialty occupation (a professional field) and have at least a bachelor’s degree that is related to the specialty occupation. If the Australian national does not hold a bachelor’s degree it is sometimes possible to show that their work experience is equivalent to a US bachelor’s degree.

EB-5 is similar to the E-2 visa in that it requires the recipient to make an investment in a US business. The E-2 does not lead to a green card by itself. The EB-5, however, results in the issuance of a green card (permanent resident status) if it is approved. The EB-5 requires an investment of $1 million and employment of 10 US workers or an investment of $500,000 in a Targeted Employment Area (high unemployment area 150% of the national average or a Rural Area) and employment of 10 US workers.

J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved 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. An important caveat to note about the J-1 is that sometimes (not always) it comes with a two-year home residency requirement. After completing the J-1 program the immigrant is required to return to their country of last permanent residence for two years before they are eligible to apply for a new visa in the US. It is possible to obtain a waiver of the two-year home residence requirement in some limited circumstances.

TN status is available for citizens of Canada and Mexico. Only a select list of professional occupations qualify for TN status. The list can be found in the NAFTA appendix 1603.D.1

The actual requirements for the visas listed above are much more extensive than the overview that I have provided. My intent was to give you a broad overview of options to consider if you were not selected in the H-1B lottery. If any of the above alternative options are intriguing to you, and you would like to learn more about them, please fill out the contact form on this page to schedule a consultation with immigration attorney Rahim Dhanani.

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