As you may have seen from some of our recent H-1B visa updates, the H-1B lottery winners for FY 2022-23 cap have been selected, and the attorneys/employers who submitted the registrations have been notified. USCIS received a very high number of registrations so if you were selected congratulations! You can confirm whether or not USCIS selected your registration by going into the MyUSCIS portal and seeing if the word ‘selected’ shows up next to your registration. If you were not selected, there are H-1B alternatives that you can explore to work legally in the United States. It’s best to discuss these options with your immigration attorney, so you have the highest chance of obtaining approval with the specific requirements.
Second Chance Lottery This Summer
A second lottery may be likely (late Summer) depending on how many of the selected registrations file a complete H-1b packet. The way it works is that the available lottery numbers from H-1B registrations which were selected in the lottery but do not file a complete H-1B petition prior to June 30, 2022 will be redistributed among the available petitions which were not selected (wait-listed). So if your petition was not selected in the March lottery, don’t lose hope because a second one is possible to happen in July also chances of selection are low due to the overall high number of submissions this fiscal year. You do not need to take any further action to be considered in the possible second lottery since it will happen automatically.
O-1A Visa: Individuals with Extraordinary Ability or Achievement
The O-1A visa is a nonimmigrant visa designed for those who possess extraordinary ability or achievement in the following fields: science, arts, education, business, or athletics. Under the broader O-1B, there are other classifications for those who have proven extraordinary achievement in the motion picture or television industry. The petitioning U.S. employer would need to provide evidence to prove that the employee meets the O-1 visa criteria.
O-1A versus H1B Visa
The O-1A visa is a good H-1B alternative for established professionals in their field. Why? The first reason it may be a good alternative to an H-1B visa is that it’s not cap-subject, so you’re not bound to firm visa allotment numbers decided by the government. The second reason is that the O-1 visa is granted for up to three years, but you can get extensions granted in one-year increments, and there are no limits to the number of extensions. The extraordinary ability standard for O-1 is met by “sustained national or international acclaim.” One benefit that key staff can qualify to come to the U.S. with you under the O-2 visa. For example, if you are a world-renowned scientist, you would bring a lab assistant, assuming they meet the criteria.
O-1 versus P-1 Visas
Both O-1 and P-1 visas are for those who possess extraordinary ability in the arts, sciences, business, education, athletics and tv/motion picture industry. To qualify for the P-1 visa, individuals must be recognized at an international level. For those seeking a P-1 visa as an athlete, they must provide proof of two of the following:
- Participated in U.S. sports league in early seasons
- Competed in an international game with a national team
- Have written documentation from a media outlet or industry expert
One of the limitations of the P-1 visa however is that dependents of the visa holder cannot work during their time in the U.S. If they wish to, they’ll need to apply for a work visa. Also, P-1 visa entertainers have to be performing as a group and not individually. The visa allows a stay in the United States up to five years with an extension, but not totaling more than ten.
These are both alternatives from H-1B visas.
L1 Visa for Temporary Workers
The L-1A or L-1B visa options are suitable for companies with offices in the U.S. and would like to temporarily transfer employees to the U.S. To be eligible for an L-1A visa, the petitioning employer must establish that the beneficiary has worked with the foreign office/branch or subsidiary for at least one year within the last three years as a manager, executive, or employee with specialized knowledge.
L1 Visa versus H1B Visa
As it turns out, the H-1B visa and the L-1 visa are two of the most popular types of work visas in the U.S. Under the L-1 visa category, there are two subgroups: L-1A and L-1B. The L-1A visa is for managers and executives, while the L-1B visa is for those who possess specialized knowledge. The L-1 visa is a suitable H-1B alternative, but there are some notable differences. The L-1 visa is really designed for employees who already work for a foreign branch of a U.S.-based company or plan to carry out operations in the United States on behalf of the foreign-based employer. The H-1B visa is different from that because candidates on the H-1B visa are working as professionals for a U.S.-based company and must have that company be willing to sponsor them. Since that’s the case, if you are a working professional in a country outside of the U.S. and your employer (parent company or subsidiary company) is willing to sponsor you at the U.S.-based office, then it may be a more suitable choice.
There is also a distinct difference in the prevailing wage aspect of the L1 visa versus the H-1B visa. Under the H-1B visa, you must be paid the prevailing wage for the area you intend to work. There is not this requirement with the L1 visa. So depending on the wage, your foreign employer is paying you may make the difference on whether to opt for the H-1B or L-1 visa. Another factor to consider is your spouse’s ability to work in the U.S. in addition to you. Currently, an H-1B candidate’s spouse can file an Employment Authorization Document (EAD) and work temporarily in the U.S. The same is true for L-2 visa holders, spouses, and dependent children (under 21) of the L-1 visa holder. They can also apply for an EAD.
In terms of the ease of acquiring an H-1B visa versus an L-1, that depends on many aspects including the number of qualified workers available in the U.S. for the job (if seeking the H-1B visa), the availability of U.S.-based offices (if seeking L-1) and of course the number of applicants the H-1B lottery receives. You should thoroughly examine all these factors alongside your immigration lawyer before making a decision.
H-2B Visa for Temporary Non-Agricultural Workers
The H-2B program is designed so U.S. employers can fill temporary nonagricultural jobs. It is a seasonal or one-time job position open to skilled and unskilled workers, including entertainers, camp counselors, home attendants for terminally ill patients, ski instructors, and business trainers. To qualify for this type of nonimmigrant classification, the petitioning employer must prove that there are not enough capable and qualified U.S. workers to perform the job, that employing a temporary H-2B worker would not negatively affect the wages or compensation for similar employed U.S. workers and demonstrate that the position is temporary (either a one-time occurrence, seasonal or peak load need). You can find the full requirements here. There is a numerical cap on these visas of 66,000 per fiscal year with 33,000 for workers who start being employed in the first half of the fiscal year with any unused numbers being made available during the second half of the year.
H-2B Visa versus H1B Visa
The main differences between the H-2B visa and H-1B visa are the types of occupations that qualify for each one and the extension availability. With the H-2B visa, it can be extended for a total period of three years, whereas the H-1B can be extended for a total period of six years. Another big difference is that the H-1B visa is dual intent which means you can continue living and working permanently through a green card. All you need is to have a U.S. employer willing and eligible to sponsor your green card by filing a PERM Labor Certification and I-140 Immigration Petition for Alien Worker on your behalf. The H-2B visa does not permit dual intent, so once it’s expired, you have to leave the U.S.
TN Visa for Canadian and Mexican Professionals
The TN visa category was created under the NAFTA agreement specifically for Canadian and Mexican professionals. The motive behind this visa category was to strengthen business and trade between the three countries. The visa permits these individuals to work in the U.S. in a NAFTA-approved professional occupation temporarily.
TN Visa versus H1B Visa
The TN visa category is more flexible in some ways than the H-1B visa. Under the TN visa, you can stay for up to three years with an indefinite number of three-year extensions thereafter. On the H-1B visa, you can have a three-year extension, but after your six-year limit is reached, you will need to leave the U.S. for at least a year unless the time can be recaptured you have started the green card process. If you end up filing for a green card, you can extend your stay past the six-year limit without having to leave the country for a year. The indefinite extensions on the TN visa make it more appealing to some people than the H-1B visa.
F-1 Optional Practical Training Extension
For the H-1B applicants who also happen to be F-1 students, there is the option to stay in the U.S on status and have the ability to work with a 24-month Optional Practical Training (OPT) STEM extension. To qualify, the student must have completed a degree in the sciences, technology, engineering, or math (STEM). To be eligible, the employer must be an E-verified company and the extension needs to be filed prior to the current OPT expiring. Check out this page to learn more. If your OPT authorization (F-1 work permit) expires before your H-1B employment period begins on October 1 check out this post on the OPT Cap-Gap rule. It allows eligible F-1 holders to maintain their status if they have a pending or approved and selected H-1B petition.
E-3 Visa: Specialty Occupation Workers from Australia
The E-3 visa classification is for nationals of Australia and their spouses/children. Applicants must be going to the U.S. solely to work in a specialty occupation – the same specialty occupation requirements as the H1-B visa. The spouse and children need not be Australian citizens.
- Are a national of Australia
- Have a legitimate offer of employment in the U.S.
- Possess the necessary academic or other qualifying credentials
- Will fill a position that qualifies as a specialty occupation
E-3 Visa versus H1B Visa
Obviously, one of the most limiting factors of the E-3 visa is that you have to be a national of Australia. If you are, though, this may be a more desirable visa because you won’t be subject to the H-1B lottery, and typically there is less competition for E-3 visas than H-1B visas. You also can renew it indefinitely, just like the TN visa. Another benefit of the E-3 visa over the H-1B visa is not having to pay some of the additional costs associated with filing the H-1B visa like the ACWIA and Fraud Prevention Fees. To apply for the E-3, you can go directly through the U.S. consulate in Australia and don’t have to file an I-129 first.
J1 Visa: Exchange Visitor Program
A J-1 visa is a non-immigrant visa available to aliens that fall under the designation of Exchange Visitor. J-1 exchange visitors travel to the U.S. through a Department of State-approved sponsor program to teach, study, receive training or demonstrate special skills. Individuals who may qualify for J-1 status include business trainees, primary and secondary school teachers, college professors, research scholars, medical residents, or interns receiving medical training within the U.S. and other specialists.
J1 Visa versus H1B Visa
One of the biggest differences between the J1 visa and H-1B visa is that sometimes there is a two-year home residency physical presence requirement that requires you to return home for at least two years after your exchange visitor program. This requirement is part of U.S. law, in the Immigration and Nationality Act, Section 212(e). If you cannot return home for two years, you must apply for a waiver. The Department of Homeland Security must approve your waiver before you can change status in the United States or receive a visa in certain categories.” Compared to the H-1B visa, which cannot exceed six years for extensions, the J-1 cannot exceed three years. Under the H-1B visa, you can only work for the sponsoring employer for the approved position. In contrast, with the J-1 visa, you can receive payment from the school/institution that issued the DS-2019 and can also do temporary work (with advance permission) if related to the program you are in. Spouses or children of a J-1 visa holder may come to the U.S. on a J-2 classification, and they can also apply for Employment Authorization Documents (EADs). Still, their compensation cannot substitute for the support of the J-1 visa holder.
Obtain Permanent Residency
In some cases, it is possible to apply directly for an employment-based green card and avoid the H-1B process altogether. Due to long wait times for an available visa, it may be a more suitable option foreign workers who are from countries other than China or India and who have a bachelor’s or master’s degree plus five years of experience. Currently, wait times are at least four years for nationals of these two countries. See the latest Visa Bulletin here.
H1B Alternatives Next Steps
There has been mention made in government about proposals to increase the H-1B cap limit. While there currently isn’t any formal action taken to do so, keep an eye on our blog for the latest developments. For those who are waiting for the FY2023-24 season to file a new H-1B petition, you can submit it beginning April 1, 2023. We anticipate the quotas to remain the same.
As you can see, there are quite a few alternatives to the H-1B visa if you happened not to be selected for the H-1B FY 2021-2022 Lottery. It’s always advised to review your options with an immigration professional carefully. VisaNation Law Group offers highly competitive filing fees and expertise in all areas of employment-based and family-based immigration.