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H1B Visa Alternatives

What is the H1B Visa?

The H1B visa allows U.S. employers to hire foreign workers temporarily in specialty occupations. H1B visas fit into the category of employment “H” visas because they are for non-immigrant workers. H1B visas are specifically for workers in certain specialty occupations who wish to be employed in the U.S. temporarily.

A worker using a H1B visa cannot stay in the U.S. permanently. An H1B visa is valid for three years and, under typical circumstances, can be extended after the first three years for an additional three years, totalling up to six years.

Why Should I Consider Alternatives to the H1B Visa?

Individuals who are considering the H1B visa should also consider its alternatives simply because it can be difficult to receive an H1B Visa. 

There are a couple of main reasons why getting an H1B Visa can be difficult and why it is wise to consider available alternatives to the H1B visa. 

H1B Visa Requirements

For starters, the H1B visa requires applicants to have a bachelor’s degree or higher or its equivalent, or to have specialized knowledge obtainable usually through earning a bachelor’s degree or higher. Applicants must also have been educated in, and seeking entry to the United States, to work in a specialty occupation. This includes engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts qualify under the H1B visa. 

H1B Visa Cap and Lottery

Besides the H1B Visa’s specialty occupation and education requirements, the H1B visa is subject to a cap on the amount issued in a “fiscal year,” which begins every October. Applicants for the H1B visa are selected through a lottery-style process due to the limit on the amount of H1B visas that the U.S. government issues.

The USCIS limits the number of new H1B visa workers with required skills and qualifications to 65,000 per year, though an additional 20,000 H1B visas are allotted per year for those who hold advanced degrees at a master’s level or higher. 

Between the cap and the lottery, there is certainly no guarantee that an applicant will be selected to receive an H1B visa, even if they qualify. 

What Are Some Alternatives to the H1B Visa? 

There are several alternatives to the H1B visa that applicants should consider. However, not all alternatives will be applicable to every applicant’s situation. To find an H1B alternative that works best for your circumstance, review the various alternatives outlined below. 

Cap-Exempt H1B Visas

The clearest alternative to the H1B visa that avoids the cap is, ironically, the H1B visa. That is, the cap-exempt H1B visas: certain employers and employees are exempted from the cap if they meet certain criteria. 

Certain types of employers are exempt from the cap, including:

  • higher education institutions 
  • non-profit organizations associated with higher education institutions 
  • non-profit research organizations or government research organizations
  • any for-profit company that seeks to hire a specialty employee to provide services to an institution or organization mentioned above.

Certain employees are also exempted from the cap, including: 

  • individuals who have previously been granted exemption to the cap. 

An employer may also file a cap-exempt H1B petition for an employee if the employee previously held H1B status in the United States and the employee has not used his or her six years of status. The petition would cover the remaining time the employee is allowed in the U.S. An individual must file a petition subject to the cap if he or she has been out of the U.S. for 1 year. 

Employees who gain different employment by transferring from one employer to another may be exempt from the cap, depending on the cap-exempt status of the employee, the employer, and the new employer.

O1 or P1 Extraordinary Ability Visas

Depending on an applicant’s specific specialty occupation and training, the O1 or P1 visas may be an appropriate alternative to the H1B visa. 

The O1A visa is available for individuals with an extraordinary ability in the sciences, education, business, or athletics. This does not include individuals with an extraordinary ability in the arts, however. 

The O1B visa is available for individuals with an extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. 

The P1A visa is available for athletes temporarily coming to the United States solely for the purpose of performing at a specific athletic competition.

The P1B visa is available for individuals coming to the United States temporarily to perform as a member of an entertainment group.

E1 or E2 Treaty Trader or Investor Visas 

The E1 visa is available to individuals participating in the trade of goods with the United States and who are citizens of countries with which the United States has a standing applicable treaty of commerce and application. E1 visa holders are admitted to the United States solely to participate in international trade on their own behalf. Certain employees of an E1 visa holder or of a qualifying organization may also receive an E1 visa.

The E2 visa is available to individuals participating in investment in a United States business and who are citizens of countries with which the United States has a standing applicable treaty of commerce and navigation. Certain employees of an E2 visa holder or of a qualifying organization may also receive an E2 visa. 

TN Country-Specific Visa for Mexico or Canada 

The TN1 visa is available for Canadian citizens who work in certain professions to be admitted to the United States for employment and business activities with a U.S. or foreign employer. Canadian citizens who work in a qualified profession may seek admission with the United States Customs and Border Protection (CBP) at certain CBP-designated ports of entry or at a designated pre-clearance/pre-flight inspection station. Thus, approval for a TN1 visa is not generally required for Canadian citizens prior to entry for qualified professionals. 

The TN2 visa is available for Mexican citizens who work in certain professions to be admitted to the United States for employment and business activities with a U.S. or foreign employer. Mexican citizens must apply for a TN2 visa at a United States embassy or consulate prior to entry to the United States. 

L1 Visa for Intracompany Transferee

The L1A visa allows United States employers to transfer an executive or manager or employee with specialized knowledge from an affiliated foreign office to an office in the United States. Foreign companies without a United States office may also use an L1A visa to send an executive or manager to the United States in order to establish a United States office. 

The L1B allows United States employers to transfer professional employees with specialized knowledge to temporarily work in the United States from an affiliated foreign office to an office in the United States. Foreign companies without a United States office may also use an L1B visa to send an executive or manager to the United States in order to establish a United States office. 

F1 Optional Practical Training (OPT) Extension or Curricular Practical Training (CPT)

The F1 visa is available for full-time students to come to the United States to study at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or language training program. The program must be academic to qualify for the F1 visa. 

After the first academic year, F1 visa holders may engage in three types of off-campus employment: 

  • Curricular Practical Training (CPT)
  • Optional Practical Training (OPT)
  • Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT)

CPT allows F1 students to work in a job that is related to their field of study and is with an employer that is sponsored by the student’s college or university to offer practical on-the-job training as part of the school’s curriculum. This includes work in a paid or unpaid internship, practicum, or cooperative education program.

OPT allows F1 students to work temporarily in a job related to their field of study for a period of 12 months. Students participating in OPT may do so before completing their academic work or after completing their academic work. OPT allows for paid and unpaid work; however, students who engage in paid work must receive a social security number. 

Off-campus training employment must be related to the F1 visa holders area of study and must be authorized prior to starting any work by the designated school official at the student’s school and by the United States Citizenship and Immigrations Services (USCIS)

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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.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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