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Alternatives to H-1B Visa: Everything You Need to Know

On March 30, 2021, USCIS announced that it had received sufficient H-1B registrations during the initial period to reach the Fiscal Year (FY) 2022 cap, including master’s cap registrations. More than 300,000 total registrations were received this year for 85,000 H-1B positions. For people with bachelor’s degrees who were vying for the 60,000 H-1B slots, the chances of selection were a little more than 20%.

Employers/Petitioners may file H-1B petitions for the selected beneficiaries beginning April 1, 2021. At this time, we do not know whether a second lottery will be conducted. For the FY 2021, USCIS did conduct another round of selections on or around August 2020. This could have been due to the COVID-19 crises, which may have resulted in employers choosing not to proceed with the H-1B filings due to the economic uncertainty.

One does not need to be a statistician to figure out that vast majority of those who applied were not selected in the lottery. The obvious question: what the alternatives are, other than waiting for next year’s registration. Here are a few options. Please consult an Attorney to see which option would work best for you.

  • Cap Exempt H-1B

One may work with universities/colleges, affiliated nonprofits, or governmental research organizations, in which you would be exempt from the cap.

The following employers are considered exempt from the H-1B cap:

  • Institutions of higher education;
  • Non-profit entities which are “related to” or “affiliated with” institutions of higher education;
  • Non-profit research organizations;
  • Government research organizations.

Note that it is not necessary that you work “for” the cap-exempt employer. It is enough if you are working “at” an institution of higher education to be considered cap-exempt.

For an institution of higher education to qualify as a cap-exempt H-1B employer, it must meet the following criteria. As per section 101 (a) of the Higher Education Act, an institution of higher education must:

  • Be considered a public or non-profit institution
  • Provide admission to students who have earned a secondary education
  • Be a licensed by the proper institution to provide education beyond secondary school
  • Offer educational programs which award bachelor’s degrees or, at a minimum, 2-year associate’s degrees.

The term ‘related’ or ‘affiliated nonprofit entity’ is defined to include nonprofit entities that satisfy any one of the following conditions:

(1) the non-profit is connected or associated with an institution of higher education through shared ownership or control by the same board or federation;

(2) the non-profit is operated by an institution of higher education;

(3) the non-profit is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or

(4) the non-profit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher education for the purposes of research or education; and a fundamental activity of the non-profit is to directly contribute to the research or education mission of the institution of higher education.

In addition, physicians who have received J waivers are cap-exempt.

  • F-1/J-1/H-3 Visas

Students and trainees may consider the F, J-1 or H-3 Visa.

F-1 is the most common visa status used by students in the U.S. and is usually most suitable as well. As part of the F-1, Curricular Practical Training permission is available for off campus jobs/internships related to a student’s course of study. Post-degree Optional Practical Training (OPT) employment permission is available for a 12-month period. A job offer is not required for 12-Month OPT. An OPT extension for an additional 24 months is possible for certain STEM majors.

While J-1 visa status is generally used for students in specific educational exchange programs, It may also be used by the university for students in degree programs. To be eligible for a J-1, students must receive a majority of their financial support from sources other than personal funds. For those on J-1, academic training is available for off campus jobs/internships related to your course of study. A maximum of 18 months of Academic Training may be used during and after completion of studies. An extension for up to 18 months is possible for post-doctoral research. Off-campus work during the degree program reduces the total period of Academic Training available after program completion.

The H-3 nonimmigrant visa can be used by people who have been invited to participate in a training program in the United States. The H-3 visa is useful for a limited group of people, mainly those who have been invited to participate in a training program in the United States. The training may be offered by a U.S. branch of their own company or by an unrelated U.S. company. However, the training must be unavailable in the worker’s home country. There are no limits on the number of people who can be granted H-3 visas each year.

  • Visas for Extra-Ordinary Ability Professionals

If you can demonstrate that you are a highly accomplished/recognized professional in your field of expertise, you may qualify for the O Visa. Note that the bar to attain an O-1 is high. However, those who have completed a Ph.D. in their area of expertise may qualify more easily compared to others. If you have a demonstrated record of achievement in your field of expertise, as evident from authorship of publications, press/media coverage, awards and recognition, membership in associations by virtue of your accomplishments, high salary compared to other professionals in your field of expertise, you may qualify for the O-1 visa.

The good news is that there is no cap on the no. of O-1 visas available each year, unlike H-1B. Further, there is no minimum salary that an O-1 visa holder must be paid, unlike the H-1B where the minimum salary requirements are high. This makes the O-1 very suitable for entrepreneurs who often like to pay themselves as little as possible so that they may continue to re-invest in the business.

E-1/E-2: Treaty Trader/Investor Visa

The E visa is available to set up a business or trade or to work for a company with which the United States engages in trade. However, this visa is only available for nationals of certain countries. Note that not all the countries in the sub-continent would qualify. Indian nationals would not be eligible, but Pakistani, Bangladeshi nationals would be eligible.

The E-2 visa allows foreign nationals whose home country has a trade treaty with the United States. if they are looking to invest capital in a US business. Employees of the investor or of a qualifying organization may also be eligible for E-2 visas.

  • Visas for nationals from certain countries

Nationals from Canada and Mexico may be eligible for the TN visa. Likewise, Australian nationals may apply for the E-3. Most positions for which an H-1B visa is filed, will also be eligible for these visas.

The TN Visa was created by the North American Free Trade Agreement to facilitate temporary employment in the United States for qualified Canadian and Mexican citizens. The purpose was to strengthen business and trade relations between the United States, Canada, and Mexico. There are no restrictions to the numbers of TN visas that can be issued.

With an E-3 Visa, Australian nationals can work in a specialty occupation (like the H-1B). Like the H-1B there is a limit to the number of E-3 Visas available each year. However, most of these numbers go unused each fiscal year.

If your H-1B Registration was not picked in the lottery, and you would like to learn more about alternatives to the H-1B, and whether you qualify for any of these visas, please contact our office.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

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