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Left out of the H-1B Lottery Selection? Alternatives to H-1B Cap Visas

Below are some alternatives for employers and current/prospective employees who were not selected for the H-1B cap cases for FY 2016 beginning October 1, 2015.  As mentioned in an earlier post, there were 233,000 applications for 85,000 slots! If you are among the two thirds of applicants who were rejected, there may be some other options available as described below.  Some of the options described below are for nationals of specified countries. They are highlighted to help employers focus on where they may want to recruit abroad, keeping in mind that in the USA, employers must be careful about discrimination in hiring practices. The following are general, short descriptions of the various temporary nonimmigrant temporary work visa alternatives to the H-1B cap cases focused on professional workers. More detail can be found on the USCIS website and the US State Department website.

H-1Bs Not Subject to the Annual Cap

  • H-1B workers seeking extension of stay who were previously counted against the cap can continue to file H-1B extensions all year long.
  • H-1B workers seeking to change the terms of their employment who were previously counted against the cap: material changes in job duties, locations, wages, employees affected by mergers and acquisitions if requiring a new case/new employer; amendments.
  • H-1B workers previously counted against the cap seeking to change employers.
  • H-1B workers already counted against the cap seeking a second, concurrent H-1B position.
  • H-1B1 visas for nationals of Chile and Singapore working in  specialty occupations.  There are up to 6800 visas set aside for nationals of Chile and Singapore (with the majority going to people from Singapore).
  • H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap. (H-1B workers in Guam and the CNMI are exempt from the H-1B cap if their employers filed the petition before December 31, 2019.)
  • H-1B workers who will be employed by “Institutions of Higher Learning,” “Non-Profit Research Organizations” or “Government Organizations Engaged in Research.”  This group also includes nonprofit organizations that are “related to” or “affiliated with” Institutions of Higher Learning, as well as private companies where the employee will work “at” one of the organization types above pursuant to an affiliation agreement. Note that if an H-1B worker is employed by a cap exempt entity and will change employers to a cap-subject entity, and has not previously been counted against the cap, that new employer would have to have filed a petition during the seven-day April cap filing season that just concluded or wait until next year.

Other Categories for Professionals or Highly Educated Workers

  • E-3 Visas for Australian nationals.  This category is also for specialty occupations with the same education requirements as the traditional H-1B program.  However, the procedures are a little different. It is more like a hybrid of an E visa and an H-1B visa. The spouses can get work permits! E-3s require Labor Condition Applications (LCAs), but not visa petitions (Forms I-129) if applying abroad. Approval of I129s are required if changing status in the USA.
  • TN visas for Canadians and Mexicans.  TNs are part of the North America Free Trade Agreement (NAFTA) between Canada, the US and Mexico.  There is a very specific list of occupations.  Canadian citizens can apply at the border, while Mexican nationals have to get visas at the US consulate. LCAs are not required. The program varies slightly for Canadians v. Mexicans. Spouses cannot work, but they need not be Mexican or Canadian citizens as is required of principal TN holders.
  • O-1 Visas are for individuals of “extraordinary ability in the arts, science or business or athletics” (with subcategories for motion picture and TV artists, members of a group and more).  An employer or agent is required along with documentation to show the caliber of the individual in the field of endeavor. An itinerary is required to show the person will continue to work in the field of endeavor. Consultations with peer groups or unions is also required. There are a few sub categories of the O visa.
  • E-1/E-2 Visas are for nationals with whom we have a treaty authorized for one or both categories.  The US company must be owned primarily by nationals of the treaty country (excluding dual nationals or those with green cards); the person needing the visa must be coming to direct and develop an investment (E-2), or be an executive, manager/supervisor or be an “essential skill” employee.  E-1 visas focus on the majority of trade between the US and the treaty country (imports, exports or both, of goods or services). The E-2 visa focuses on the amount of investment into the US company (capital equal to cash, equipment and inventory).  While there is no set dollar amount of capital required, it must be “substantial” and “not marginal.”  The amount needed for investment will depend upon the type of business, whether it is being bought or started from scratch, and metrics for similar businesses in the geographic region.  A quality business plan is essential.  The visa holder can be the owner/entrepreneur, or be coming to work as an employee of an existing qualifying treaty company. E spouses can work.
  • L-1 Visas are for multinational transferees.  These visas are for people being transferred from one entity abroad to a related entity in the USA.  The company abroad and the US company must have “common ownership and control.”  The company abroad must continue to do business (or have other related entities abroad) while the L-1 visa holder is in the USA.  The person being transferred must have worked full time for the company abroad for at least one year in the three years prior to transfer from the company abroad.  For new US companies, visas will be issued for one year upon showing of adequate premises, and certain other specific “new office” evidence.  To get extensions of course, the petitioner will have to show the company is up and running, generating revenues and/or jobs.  Again, quality business plans are essential.  Holders of these visas include L-1As for managers and executives (up to seven years), and L-1Bs for persons of specialized knowledge (up to five years).   L-1Bs have received particular scrutiny over the years when the H-1B cap is reached, especially of third party placements or consulting firms, as well as scrutiny of new and small start-ups.  There is a new proposed L-1B memo out for comment that is worth a look. It has a May 8, 2015 deadline for submitting comments.  L-2 spouses can work. Like H-1Bs, L-1 visa holders can have “dual intent” to come to the US temporarily or permanently.
  • Q visas are for cultural exchange. There must be a reciprocal exchange program, with the individual visa holder coming to the US to share some type of cultural knowledge with the public through the petitioner’s established exchange program. While a paid employment program, an integral part of the duties must involve sharing the visa holder’s knowledge of his or her country’s history, culture and/or traditions with the US public.

Education and Training Alternatives

Especially for new graduates with bachelors degrees or equivalent, not getting into the H-1B program may mean it’s time to get some more education or training. Careful analysis of eligibility and procedures, including perhaps going home first and then coming back, may be in order.

  • F-1/M-1 student visas. For many people, the more education the better for one’s future. Education never hurt anyone. Recognizing it may be expensive, it still may be worth going for that masters or higher degree in part because of job opportunities in the future, ability to get more practical training (CPT or OPT), and for many, getting into faster future permanent immigration categories. (EB2 is usually faster than EB-3.) Studying STEM subjects entitle foreign students to longer periods of OPT that allow for two cracks at applying for H-1B status over two years.  Further, more specialized education v. a bachelors degree or AA in general ed, general studies, liberal arts, or general business, will be better for future H-1Bs or other visas that require more specialized education. M-1s are for vocational training (e.g., gemology, flight training, culinary arts, fashion design, etc.)
  • J-1 Exchange programs These are available for scholars (e.g., doing post-grad research), teachers, trainees and interns.  Trainees and interns have some education or age limits.  Nonetheless, the J-1 visa is  a good way to get some additional experience. One must apply to an approved program. Like the H-3, the expectation is that the J-1 visa holder will go home to share knowledge with one’s countrymen. However, unlike the H-1B, the J visa is not for fully qualified professionals.
  • H-3 Trainee Visas. These are programs generally designed by individual employers to create a very specific and formal training program that shows how the visa holder will prepare for a career abroad.  The H-3 program requires intent to return home to pursue a career abroad.  Neither the J-1 intern/trainee nor the H-3 is for fully qualified professionals that would make one eligible for H-1B.  There is also an H-3 sub-category for teachers interested in special education training, and provisions for certain medical externs and nurses.

Some Other Things to Think About

Finally, if you were not selected for the FY2016 H-1B cap program, additional ideas include:

  1. Start your own business abroad or in the USA.  See the E and L categories above, or the EB-5 permanent investor program if you have the funds.
  2. Start the green card process instead.  You might need to wait outside the USA if you cannot keep an underlying nonimmigrant status while waiting for processing times or quotas, but at least you are not subject to chance or a lottery (although many of us immigration law practitioners often find the adjudication trends in all categories to be more a game of chance than proper analysis of applications).
  3. Consider whether you have a chance for family immigration through a spouse, parent or child.
  4. Consider whether your nonimmigrant spouse may have better credentials than you for any of the categories above, or if your spouse got luckier than you in the H-1B lottery, down the line, you may be able to work in H-4 status.  Beginning May 26, 2015, some, note, “some” H-4 spouses will be able to obtain work authorization if they are far enough along in the green card process. See our earlier blog post about H-4 work authorization. 
  5. Consider joining the US military! If you are currently in valid nonimmigrant status, indeed most nonimmigrant statuses, you may be able to join the military and immediately seek citizenship, thereby bypassing the H-1B and green card process altogether. The program is called MAVNI, or Military Accessions Vital to the National Interest.   The applicant has to have either a specific language capability or be in certain medical professions. The Army’s list of MAVNI requirements is here. The Army program is expanding from 3000 to 5000 recruits eligible for MAVNI.  Naturalization takes place during basic training.

If any of the categories above look appealing to you or your prospective employee, and you would like more information or an in-depth consultation, please give us call at (206)282-2279.  This firm handles all of the categories above.