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Alternatives to the US H1B Visa

Alternatives to the US H1B Visa

The H1B is a highly desirable and oversubscribed work route into the US. If you’re lucky enough to be selected in the H1B lottery, you then have to file a comprehensive petition to prove your eligibility under the H1B rules. Because of this uncertainty and the relatively slim odds of being granted an H1B visa, it is worth considering alternatives to the H1B visa. In this guide, we highlight different visa options for those looking to come to the US to work.

 

Challenges of the H1B

The H1B visa is a nonimmigrant visa allowing skilled workers from around the world to undertake a job role within a specialty occupation. The H1B visa is a fairly common visa type for which many overseas nationals will be eligible, provided they have the offer of a qualifying job from a US-based employer and are suitably qualified or experienced. H1B jobs are those roles which meet the criteria for an H1B visa, including the theoretical and practical application of a body of highly specialised knowledge, together with the attainment of a bachelor’s or higher degree within the specific specialty or its equivalent.

Broadly speaking, any graduate level job that normally requires a bachelor’s or higher degree as a minimum entry requirement can potentially qualify as a specialty occupation. This can include roles across a wide range of industry sectors, including education, IT, accounting, architecture, engineering, mathematics, law, the sciences, medicine, healthcare, biotechnology, business specialties, journalism and the arts.

However, to be able to obtain an H1B visa, an overseas national will first need to apply for and be offered a H1B job role. This means that they must identify a US-based employer with suitable vacancies willing to sponsor foreign workers and who can petition for an H1B visa on their behalf. The prospective employer and employee will then need to navigate a multi-stage application process. This will entail a labor condition application to the US Department of Labor by the US employer, plus a petition to US Citizenship and Immigration Services (USCIS), followed by a visa application by the prospective employee to the Department of State at a US Embassy or Consulate, provided the petition is approved.

Unfortunately, there is an 85,000 yearly cap on specialty occupation petitions (including 20,000 for those with US master’s degrees), but often with more than double this figure applying each year. As such, once the number of visa petitions exceeds the total number of visas that can be approved in any given fiscal year, these are entered into a random computerised lottery to select the petitions that will actually be adjudicated by USCIS.

 

Alternatives to the H1B visa

H1B petitions filed by higher educational institutions, non-profit entities related to such institutions and certain non-profit research organisations are exempt from the H1B visa lottery. A cap-exemption case may be made even if the H1B employer does not meet these requirements, but the placement of the H1B worker will be at the location of a cap-exempt employer. Therefore, these organisations are prime targets for overseas nationals looking to work in the US since the petitions can be processed immediately without limit.

However, there are also various other nonimmigrant visa options available, including:

  • the O1A extraordinary ability visa or the O1B extraordinary achievement visa
  • the L1 intracompany transferee visa
  • E2 treaty investor visa & E1 treaty trader visa

 

O-1 extraordinary ability or achievement visa

Overseas nationals with extraordinary ability or achievements may be eligible to apply for an O1 work visa, one of the most prestigious US nonimmigrant visas due to its numerous advantages compared with other similar nonimmigrant classifications.

The O1 visa is a nonimmigrant visa aimed at individuals who possess extraordinary ability or achievement in their specialised field. This can be broken down as follows:

  • O1A visa: for those with extraordinary ability in the sciences, education, business or athletics, not including the arts, nor the motion picture and television industry (MPTV)
  • O1B visa: for those with either an extraordinary ability in the arts, or who have a proven record of extraordinary achievement in the MPTV industry.

 

As such, by definition, not many overseas nationals will qualify for either one of these visa categories. For example, an O1A visa applicant must be able to show sustained national or international acclaim, as one of the very small percentage who have arisen to the top of their field. All O1 individuals must also be coming temporarily to the US to work in their specialised field, although the specific duties to be performed in any given role do not necessarily need to require someone of such extraordinary ability or achievement.

Where an applicant is successfully granted an O1 visa, this will allow them to come to the United States to work in their specialised field for a period of up to 3 years. Additionally, an O1 visa-holder may be able to extend their stay in increments of up to a year at a time, with no limit to the number of extensions. As with the H1B visa, O1 visas are also dual intent visas. This will allow a visa-holder to continue in nonimmigrant status and concurrently seek to adjust their status to that of a permanent resident. This essentially means that O1 nonimmigrants can apply for a green card whilst temporarily working in the US.

An O1 visa also has a number of benefits over the H1B visa. These include the fact there is no prevailing wage requirement, where the US sponsor will not be required to file a labor condition application with the US Department of Labor, nor is there any annual numerical limit on how many O1 petitions will be approved each year by USCIS.

 

L1 intracompany transferee visa

The L1A visa is for employees of multinational enterprises looking to work in an affiliated office in the US within either an executive or managerial capacity, whilst the L1B visa is for intracompany transferees with specialised knowledge of their employer’s organisation.

Provided the employee has worked for a qualifying organisation abroad for a continuous year within the 3 years immediately preceding their admission to the US, an L visa will enable a multinational company to transfer senior or specialised knowledge employees to one of the company’s US offices. This classification also enables a foreign enterprise that does not yet have an affiliated US office to send an executive, manager or employee with specialised knowledge to the United States with the purpose of setting one up.

As such, L1 visas are for established senior or specialised knowledge employees destined to work in a similar role in the States. In contrast, the H1B visa is for prospective employees wanting to work for a US organisation, with entirely different eligibility criteria.

The process of obtaining L classification is far easier than the drawn out procedure for H1B visas. By filing a blanket petition, certain employers can also establish in advance the required intracompany relationship necessary for USCIS approval. Although the approval of a blanket L1 petition does not guarantee that an employee will be granted an L1 visa, it does provide the employer with the flexibility to quickly transfer eligible employees to the US without having to file an individual L1A or L1B petition with USCIS every time.

The L1A visa-holder will be allowed a maximum initial stay of 3 years, although requests for extensions of stay may be granted in increments of up to 2 years, until the employee has reached the maximum limit of 7 years. This applies equally to L1B visa-holders, but with a maximum length of stay of 5 years. However, as with the H1B visa, L1 visas are dual intent, allowing the visa-holder to take steps towards obtaining lawful permanent residence.

 

E1 and E2 treaty trader and investor visas

The E1 and E2 visas are nonimmigrant visas for citizens of countries with which the US maintains a treaty of commerce and navigation or certain other international agreements.

Under an E1 visa, a national of a treaty country must be coming to the US solely to engage in trade of a substantial nature in qualifying activities, principally between the US and the treaty country or, alternatively, to work in the treaty trader’s US enterprise in either an executive or supervisory role, or as an essentially skilled employee.

Under an E2 visa, the applicant must be coming to the US to solely develop and direct the operations of an existing or a brand new US enterprise in which they have invested, or are actively in the process of investing, a substantial amount of capital using lawfully obtained funds. Again, a senior employee of the treaty investor, or an employee with skills which are essential to the operation of the business, may also be eligible for an E2 visa.

The E1 and E2 visas are popular with both overseas entrepreneurs and their employees, although there are various strict requirements that must be met. In addition to meeting a nationality requirement, where the applicant must possess the nationality of a qualifying treaty country, they must also meet a substantial trade or investment requirement. For E1 classification, although there is no minimum requirement in relation to monetary value or the volume of each transaction to satisfy the substantial trade requirement, there must have been numerous transactions between the US and the treaty country over a period of time.

Similarly, when considering substantiality in the context of E2 classification, there are no fixed capital thresholds, although the investment must be sufficient to ensure the successful operation and development of the US business, measured in a proportional sense. The amount of capital required for investment can therefore vary, depending on the type of enterprise, with more capital-intensive industries requiring more significant investments.

Where an applicant is granted an E1 or E2 visa, this will allow them to work in the US for up to 2 years. These visas can be renewed an unlimited number of times, in increments of up to 2 years each, for as long as the business remains active and the visa-holder is actively involved. They must also maintain an intention to leave at the end of their stay.

 

Optional practical training as an H1B alternative?

Optional Practical Training (OPT) is a 12-month work authorisation available to F1 international students who have been full-time students for at least one full academic year and plan to seek employment in the United States in their major area of study.

OPT essentially allows US college graduates from abroad one year of practical training-based employment in their specialised field as part of the F1 student visa. Eligible students can apply to receive up to 12 months of OPT employment authorisation before and/or after completing their academic studies. This can also be extended by 24 months if a graduate is working in certain science, technology, engineering and mathematics (STEM) roles and the employer participates in the E-Verify online employment verification programme.

 

Key considerations

There are several benefits to each of the various nonimmigrant work visas, including O, L and E visas. However, when deciding which visa is best will often come down to the individual circumstances of each applicant, and whether or not they meet the visa-specific requirements for any given nonimmigrant classification. Every visa type carries unique requirements, where no alternatives to H1B visas replicate all of the same features.

As such, when looking to apply for a US work visa, it is always best to seek expert advice from an immigration specialist. In this way, a prospective applicant can explore all available options and decide which best suits them. Their legal advisor can also provide the necessary support and assistance to help navigate the often complex visa application process. In some cases, it may even be possible to apply for an employment-based green card, providing an individual with the right to live and work in the US on a permanent basis.

Finally, with the annual H1B filing season almost upon us, where USCIS begins accepting new H1B visa petitions every April, prospective employers and employees still intent on applying for a H1B visa should be seeking immediate legal advice to help them prepare.

 

Need assistance?

NNU Immigration specialize in US visa applications. Contact us for advice and support on your immigration options to work in the USA.

 

Alternatives to H1B FAQs

Is there any alternative to H-1B visa?

There are various alternatives to the H-1B specialty occupation visa, including an O-1 extraordinary ability visa, an E-1 treaty trader or E-2 treaty investor visa, and an L-1 intracompany transferee visa for managers, executives or specialised knowledge employees.

 

How to stay in US without H1B?

It is possible to stay in the United States without H1B visa classification under one of the various other nonimmigrant visas available for foreign workers including, for example, E classification for treaty traders and investors.

 

Is O-1 visa better than H1B?

O-1 visas can be a better option than H1B visas, as petitions for nonimmigrant visas under O-1 classification are not subject to an annual cap. The H1B classification has an annual numerical limit of 65,000 new visas every year.

This article does not constitute direct legal advice and is for informational purposes only.

Author

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.

Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

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