Not Chosen in the H-1B Registration? Consider These Visa Alternatives
So, you or your prospective employee wasn’t chosen in the H-1B registration? There are options for staying in the United States. Congress has an annual cap set at 65,000 plus 20,000 for those with master’s degrees for the H-1B visa. But if you are not selected in the H-1B lottery, there are other alternatives for foreign workers and US employers. You’ve probably reviewed these alternatives before, but it’s time to look at them more closely.
F-1 Visa with OPT/CPT
The F-1 Visa is for foreign students or new graduates. Curricular Practical Training (CPT) allows internship or employment to the foreign student during the school year under certain conditions. Optional Practical Training (OPT) provides the student 12 months of unrestricted employment. Additionally, if you are in the STEM (Science, Technology, Engineering, and Math) fields, you could extend your OPT work authorization for an additional two years.
L-1 Intracompany Transferee Visa
This type of visa allows companies with offices both in the US and foreign countries to transfer foreign employees to temporary work in the US in executive, managerial, or specialized knowledge positions. There are two types of L-1 visas: L-1A Multinational Executive/Manager allows temporary work status for up to seven years, and the L-1B Specialized Knowledge allows temporary work status for five years. One must be coming to the US to fill executive, managerial, or specialized knowledge positions. To be eligible, you must have worked one year in the last three years for the company that is sponsoring your transfer to the US. Spouses and Children of L-1 visa holders receive an L-2 visa. Spouses with L-2 visas are automatically given work authorization.
TN Visas
The TN visa category gives temporary work eligibility for Canadian and Mexican citizens in certain NAFTA occupations for a period of three years. The TN visa requires the foreign employee to meet the qualifications for the position. The position in the U.S. must be a listed NAFTA occupation. Self-employment is not permitted. Extensions for this visa are available for an unlimited amount of time. Dependents of a TN non-immigrant (spouses and children under the age of 21) may accompany in TD status. However, family members in TD status are not allowed to work but may study.
O-1 Visa
The O-1 visa classification is suited for individuals of extraordinary ability or achievement. O-1 beneficiaries in the sciences, arts, education, business, or athletics must have extraordinary ability with a “skill and recognition significantly above that ordinary encountered,” or “one of that small percentage who has risen to the very top” of their field. Spouses and children of O-1 visa holders can get the O-3 visa and attend school.
B-1 in lieu of H-1B
The B-1 visa classification grants entrance to the US to an employee of a foreign company to perform tasks that require at least a bachelor’s degree but are only needed on a temporary basis. The foreign employee needs to be paid by the foreign company.
E-3 Visa
The E-3 visa classification is restricted to Australian citizens who are professionals, meaning that their positions require at least a bachelor’s degree. The E-3 visa allows entrance to the US for two years and is renewable. An Australian professional can apply for the E-3 at the US embassy anywhere in the world. Additionally, the applicant's spouse and children receive an E-3 derivative visa, and the spouse is granted work authorization.
J-1 Visa
The J1 visa permits nonimmigrants to participate in a program approved by the Department of State to work for either public and private entities. J-1 nonimmigrants are sponsored by an exchange program. J-1 trainees can obtain training for up to 18 months with a US company, while J-1 interns can obtain up to 12 months of training.
PERM Process
Although it is not a status, the PERM process leads to legal permanent residency, a.k.a. a “green card,” through employment. During this process, the US company must sponsor the foreign employee for a position that the person already holds or a new position. This application requires the employer to test the labor market for other qualified employees by advertising in the newspaper, with the employment department, and other tools.. For many individuals, permanent residency is the ultimate goal. Since this PERM process doesn’t grant the individual legal status in the United States, the individual must maintain a visa status or remain outside the US until approved.
Conclusion
Keep in mind that this recent H1-B registration for this fiscal year might not be the last. Sometimes the registration is run again when not enough people file an H-1B petition or some H-1Bs are denied, which makes more visas available. Additionally, there is always an opportunity to apply for the H-1B visa when the next fiscal year’s registration opens again in March 2023.
Remember: A few of the visas above only offer temporary work status in the US. There could be timing constraints when attempting to change the status to another visa. On a much-needed positive note, USCIS has recently announced reduced processing times and expansion of case types eligible for premium processing (with faster processing times).
No matter what, definitely consult with an immigration attorney to determine a strategy suitable for your situation.
About the Author: Ruby L. Powers is the founder of Powers Law Group, P.C., a Houston-based firm focusing on immigration law including waivers of inadmissibility, asylum, deportation, family– and employment-based immigration. Click here to learn more about Ruby.
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