With the demand for new H-1B visas far exceeding the annual cap of 85,000, it is more important than ever to explore alternative visa options. Read on for more information on other available classifications.
By Nancy Giesel, Law Clerk
Due to the increasingly limited visa availability of the H-1B, exploring alternative visa options has become imperative for individuals seeking to temporarily work in the United States. There are several alternative visa options that provide pathways for skilled workers coming to the US. These options fall into two categories: general visas or treaty-based visas. Of course, none of the alternate options exactly replicates all the features of the H-1B and their availability depends on the details of your individual case, so please consult with an attorney when exploring what alternative visa option may be best for you.
General Visas
These visa options are generally available to all foreign nationals who meet the eligibility criteria of the visa, regardless of their country of citizenship.
F-1 Visa post completion OPT and STEM OPT
Optional Practical Training (OPT) allows for one year of practical training in the field of study for those foreign nationals who have completed their course of study under an F-1 student visa. Post completion OPT is generally valid for one year after graduation. Foreign nationals who while on their F-1 student visa have obtained a STEM degree may be eligible for an additional 24-month extension referred to as STEM OPT. To obtain this status, you must have been granted OPT and currently be in a valid period of post-completion OPT. There are additional requirements for the employer including enrollment in E-verify and approval from the academic institution.
Cap Exempt H-1B Visa
Certain sponsoring employers may be exempt from the H-1B numerical cap and can sponsor foreign nationals for an H-1B at any time of year without being subject to the annual numerical H-1B visa limits. Cap-exempt employers include institutions of higher education, non-profit or government research organizations, and non-profits associated with higher education. It is important to note that while these employers are cap exempt, they still must meet standard H-1B requirements such as labor certification requirements.
J-1 Intern or Trainee Visa
This status is available for foreign nationals who are coming to US to participate in work and study-based exchange visitor programs to obtain on-the-job training with a US employer. There are key differences between the intern and trainee positions, including differences in the length of stay allowed. Interns are generally students or recent graduates, while trainees must have at least one year of experience in the field. The J-1 intern or trainee visa permits the foreign national to train and work under the auspices of the J-1 sponsor with a US employer that has been approved by the sponsor. It allows for derivative spouses to work under J-2 status with valid work authorization.
L-1 Visa
The L-1 visa is ideal for multinational companies who wish to transfer employees from an overseas branch to a U.S. branch of the same organization. It allows managers, executives, and employees with specialized knowledge to transfer internationally to work in the United States for a temporary period. To qualify, the foreign national must work at the foreign subsidiary in a managerial or executive role for one out of the previous three years before becoming eligible for transfer. There are strict requirements that both the foreign subsidiary and the U.S. role must be managerial or executive in nature or require specialized knowledge of the company. Derivative status is possible, and derivatives may be able to work in the U.S.
O-1 Visa
The O-1 visa is designed for individuals with extraordinary abilities in the sciences, arts, education, business, or athletics. Foreign nationals must demonstrate exceptional talent in their respective fields through sustained national or international acclaim. Evidence of this could include published scholarly articles, contributions of major significance to the field or critical employment in a distinguished organization. While the requirements for this visa are rigorous, it is a promising option for highly skilled professionals who have received significant recognition or awards in their industry.
Work Authorization as a Dependent
Derivative spouses of certain nonimmigrant visa holders are eligible for work authorization. Derivative spouses holding E-2S, E-3S, or L-2S visas are authorized to work in the United States incident to status. These visa holders can present an I-94 record or a Form I-797 Approval Notice issued by USCIS to show employment authorization.
Treaty-Based Options
There are a series of treaty based temporary work visas that operate as H-1B alternatives. It is key to note that many of the below visa options require that the foreign national be a citizen of the appropriate treaty country to qualify for this visa.
E-3 Visa
The E-3 visa is a treaty-based visa available only to Australian citizens. Like the H-1B, the E-3 visa requires that the foreign national work in “specialty occupation,” have a US bachelor’s degree or equivalent and have a certified labor condition application. There is a numerical cap on E-3s, but it has never been reached. Spouse and children can get derivative status and work under the E-3D status. While E-3 visa holders can request unlimited renewals, this visa does not usually transition easily to U.S. permanent resident (green card) status.
H-1B1 Visa
The H-1B1 visa is another treaty-based visa available to citizens of Chile and Singapore. Like the E-3 and H1-B, it requires that the foreign national have a “specialty occupation,” a U.S. bachelor’s degree or equivalent and certain labor certification requirements. H-1B1 holders are admitted for a temporary period, usually ranging from 12-18 months. While derivatives may get status, they may not work. With this visa, it also may be difficult to transition to permanent residency.
TN Visa
The TN visa is another treaty-based visa that is available to citizens of Canada and Mexico who are employed in certain professional occupations including engineering, system analytics, and graphic design. It comes from the North American Free Trade Agreement (NAFTA) and allows for skilled professionals to come to the US on a temporary basis. Canadian nationals can apply for TN status at the border, while Mexican nationals must apply at a US consulate in Mexico. Family members can get derivative status from a TN, but they cannot work in the US.
As demonstrated above, these H-1B visa alternatives often have their own limitations, but if you believe one of these categories may be a good fit for your situation, or if you wish to learn more about these alternatives, please consult with a Parker Gallini immigration attorney to explore if there is a viable option for you.
Immigration at Work 