Alternatives to H-1B Temporary Work Visa
The H-1B visa classification allows U.S. employers (petitioners) to petition to hire foreign nationals beneficiaries) to work temporarily in specialty occupations. The term “specialty occupation” means an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and, (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation in the United States.
H-1B visas are capped per fiscal year at 65,000 for persons who hold a Bachelor’s Degree plus 20,000 for persons who hold a U.S. earned advanced degree (a Master’s degree, Professional Degree, or a PHD). There are a total of 85,000 visas available each year for persons who are being sponsored for a new employment in H-1B status. The U.S. Citizenship and Immigration Service (USCIS) begins to accept H-1B CAP applications on April 1 of each year. The start date of approved H-1B CAP applications is October 1. According to the USCIS, there were 172,500 applications filed between April 1, 2014 and when the cap closed on April 7, 2014. The rest of the applications are usually placed in the lottery system. The USCIS begins to reject the applications not selected in the beginning of June.
This limited number of available visas often causes companies to lose the opportunity to employ skilled foreign nationals in the occupations for which there are no available and skilled U.S. workers.
The good news is that there are alternatives to H-1B work visa or status. Let us explore other available temporary work visas:
H-1Bs that are not counted against the CAP
The CAP only applies to new H-1B petitions. A person is not counted against the CAP if they have already been counted against the CAP within the past six (6) years. This means that the same person can apply for H-1B with a new employer and will not be counted against the CAP.
There is also a category of H-1B petitioners who are Cap-exempt. This category includes J-1 physicians who have obtained a waiver pursuant to the State 30 program or federal program. It also includes beneficiaries of employment offers at institutions of higher education, and petitioners who are a non-profit affiliated or related to an institution of higher education.
L-1 Intracompany Transferee Visa
This type of visa allows companies with offices both in U.S. and foreign countries to transfer foreign employee to temporary work in the U.S. in executive, managerial, or specialized knowledge positions. There are no annual limits for this type of visas.
This visa category allows Canadian and Mexican citizens to temporarily enter in the U.S. work in a professional position or a Business Consultant position.
E 1/E-2- Trade or Investor Visa
This category allows citizens of foreign countries that have a treaty commerce and navigation, or a bilateral investment treaty providing for non-immigrant entries with the U.S.
The E-3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore to be eligible for the visa, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.
The O-1 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 “demonstrated by sustained national or international acclaim.” There is no annual limit for this classification.
Students who hold F-1 status and are completing their Optional Practical Training (OPT) can extend their training period for up to 17 months, if their field of study in Science, Technology, Engineering and Mathematics. The students must work for an employer who is registered for E-verify and must be enrolled in a major included in the STEM program list.
B-1 in lieu of H-1B
This classification allows employee of a foreign company to enter in the U.S. to work temporarily for a short time for the affiliate U.S. Company. The foreign employee must occupy a professional occupation (which requires at least the attainment of a Bachelor’s degree). Also, the foreign employee can only be paid by the foreign company and must comply with other B-1/B-2 requirements.
J-1 Trainee Visa
This classification allows exchange visitor who has a foreign degree or a professional certificate and at least one year of prior related experience to obtain training for up to 18 months with a U.S. company.
This classification allows a temporary worker invited by an organization to receive instruction and training in any field of endeavor that is not designated primarily to provide productive employment.
Some of the classifications explained above only offer temporary work/trainee status for a short period of time and may entail some restrictions with regards to change of status to another classification. One should consult with an immigration attorney to better lay out a strategy suitable for one’s specific situation.
Finally, there is always an opportunity to apply for H-1B status when the next fiscal year opens and new H-1B CAP slots become available.
Author: Claudine Umuhire Gasana, Associate Attorney at the Office of Ruby L. Powers
Disclaimer: The content of this article is provided for informational purposes only and it is not intended to provide or be taken as a legal advice.
Contact us for specific analysis of your case at:
Law Office of Ruby L. Powers, P.C., 5225 Katy Freeway, Suite 202, Houston, TX 77007
Tel: (713) 589-2085
 Immigration and Nationality Act (INA) 214(i)(1) and 8 C.F.R 214.2(h)(4)(ii)