With the fiscal year cap on H-1B visas set at 85,000, many employers are looking for alternatives to bring qualified workers into their companies. Pursuing alternate visa types or schemes within the framework for other visas can be useful to persons who have not made the cap on H-1B visas or do not qualify as having a specialty occupation.
TN Visa
For citizens of Canada and Mexico, the TN is a viable alternative to the H-1B visa. The TN visa is established per the North American Free Trade Agreement to admit qualified Canadian and Mexican citizens to temporarily enter the U.S. to engage in professional business activities. Employees may qualify for a TN visa if they are Mexican or Canadian Nationals who will be working NAFTA approved professionals.
Canadian citizens are not required to apply at a U.S. consulate but must simply submit proof of Canadian citizenship, a job offer indicating length of stay, and credentials where required to a U.S. Customs and Border Protection Officer at a U.S. port of entry. Mexican citizens can acquire a TN Visa prior to entry by applying directly at a U.S. embassy or consulate. The initial stay for a TN visa is 1-year and is renewable in 1 year increments without limitation.
The primary advantage to obtaining a TN visa over an H-1B visa for qualified foreign nationals is that there is no limitation on renewals. The visa is renewable indefinitely as long as qualifications are met. The treaty agreement between nations also helps the petitioner avoid the long delay of filing a full petition in the U.S. There is also no cap on TN visa. Lastly, the broad list of professions which can qualify for a TN visa may prove advantageous to persons whose occupation could never qualify as a specialty occupation under an H-1B visa.
L-1 Visa
U.S. organizations with a related entity abroad such as a parent, subsidiary, branch, or affiliate can transfer workers with specialized knowledge or managers and executives with an L-1 visa. In order to qualify the employee must have worked for the foreign entity for at least one continuous year during their last three years of employment.
The transferring employee may be granted an initial stay of up to one year if they are coming to the US to assist establishing a new office. All other qualified employees can be granted a maximum initial stay of up to three years. Stays can be extended in two year increments up until the maximum stay of seven years has been reached.
J-1 or H-3 Visas
For trainees and persons wishing to gain experience or knowledge of the prospective employer’s products. The J-1 visa or H-3 visa can be options. The J-1 visa is designated for those who intend to participate in an approved exchange program.
The H-3 visa is designated for foreign nationals aspiring to come to the U.S. for training in any field other than graduate medical education which is not available in their country. Persons coming to the U.S. to further their careers at home with on-the-job training which is not available in their country may qualify for an H-3 visa.
Student Visas
An option for recent U.S. STEM degree graduates in the post-completion Optional Practical Training (OPT) period can work for 17 months in the U.S. on a student visa. This is useful for persons who did not make the cap on their first H-1B filing and would like to work a year in the U.S. until the next filing period. If other visa types do not apply, a final solution is utilizing H-1B visas that is utilizing H-1B visas that do not count against the cap.
Persons who have counted against the cap in the last 6 years, persons living abroad who have been granted H-1B status in the last 6 years, and persons working in university academia or affiliated nonprofits organizations can obtain H-1B visas without counting against the cap. See the article on “H-1B Cap Exempt Candidates”.
Being limited from hiring qualified employees by the H-1B cap is a serious concern for many employers. Utilizing one or more of the available alternatives to the H-1B visa could be a potential solution.
O-1 Visa
The O-1 visa is reserved for individuals who have achieved significant success in their respective fields. For example, those applying must be able to demonstrate that they possess extraordinary ability or accomplishments in areas such as the sciences, arts, athletics, or business.
Additionally, applicants must be able to show that they have a level of expertise and recognition that sets them apart from others working in the same field. Furthermore, applicants are expected to provide documents proving their qualifications and achievements. As such, it’s important to thoroughly research all requirements and procedures associated with obtaining an O-1 visa before submitting an application.
The O-1 visa also offers certain advantages for those who are eligible. For instance, individuals with an O-1 visa can bring immediate family members such as a spouse or children to the U.S. under the same visa.
Moreover, those with an O-1 visa are allowed to change employers without jeopardizing their status in the U.S. Lastly, it is possible to extend an O-1 visa indefinitely provided that applicants meet all necessary requirements each time they submit a request for renewal.
E-2 Visa
The E-2 visa is a popular alternative to the H-1B visa for those seeking to work in the US on a temporary basis. Unlike the H-1B, the E-2 does not require an individual to possess advanced qualifications or education.
Additionally, there are no limits on how long an individual can stay in the U.S. under an E-2 visa and it can be renewed indefinitely provided that applicants meet all requirements each time they submit a renewal request. Furthermore, unlike the H-1B, applicants for an E-2 visa do not need to prove extreme hardship if their application is denied.
One of the biggest challenges with obtaining an E-2 visa is that it is only available to citizens of certain countries. Furthermore, applicants are required to demonstrate substantial investments in a business venture in the U.S. and prove that their investment will benefit the U.S. economy.
Additionally, applicants must provide evidence of their nationality, financial solvency and ability to support themselves while staying in the U.S. The immigration process can also be lengthy and complicated, requiring multiple steps that involve filing paperwork and attending interviews. Finally, it is important to note that there are no guarantees that a person’s E-2 visa application will ultimately be approved.
It is important to note that the E-2 visa is valid for a maximum period of five years. After this period, it can be renewed indefinitely as long as each renewal application meets all of the requirements. Additionally, E-2 visa holders are allowed to bring their family with them while they stay in the U.S. Their immediate family members may also obtain work authorization under certain circumstances. Furthermore, E-2 visa holders have certain rights and benefits such as being able to open a bank account and receive health care coverage. Finally, it is worth noting that in some cases an E-2 visa holder may be able to apply for permanent residency status in the U.S.
Conclusion
The H-1B visa provides a viable alternative for foreign nationals who wish to stay in the United States and work. By demonstrating specialized skills and possessing a valid job offer, individuals are able to live and work in the U.S., perhaps even leading to permanent residency status. However, it is important to understand that the application process can be challenging and involves numerous rules, regulations and deadlines. As such, those considering an H-1B should consult with an experienced immigration attorney to ensure that their application has the greatest chance of success.
