Not Selected in the H-1B lottery? Here Are Some H-1B Alternatives

Were you aware that there are H-1B alternatives? The H-1B visa is a popular nonimmigrant visa for those seeking employment in the United States. This classification is for workers in “specialty occupations,” which are jobs that require a “theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent).” As a result, the H-1B also carries a certain prestige and is highly sought after.

The initial validity of an H-1B can be up to 3 years, and it may be extended for up to an additional 3 years. Under certain conditions, the H-1B worker may receive more than 6 years of H-1B status.

Unfortunately, this visa’s popularity typically results in many more applications per fiscal year than the annual quota allowed by U.S. immigration law. To deal with this problem, a large portion of those applications must first pass through a lottery system, which randomly selects from the total pool of applications whatever number is thought to be necessary to fill the annual quota.

The result of this numerical limitation is that hundreds if not thousands of otherwise perfectly qualified candidates are not able to be sponsored through no fault of their own. The good news, of course, is that being passed over by the lottery is not the same as having a visa denied; it does not negatively affect the applicant’s immigration record.

But there may be other visa classifications to consider that are H-1B alternatives. Attorneys at Levin and Pangilinan PC review countries of citizenship, nature of work, and a person’s level of expertise and experience in developing a bespoke solution.

In this blog, we will present your options for H-1B alternatives under three broad categories:

H-1B visas not subject to the lottery (or cap-exempt)
Other employment-based nonimmigrant visa statuses
Special visas for people from specific countries
Employee and Employer Assistance with visas
Frequently Asked Questions

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H-1B Visas Not Subject to the Lottery (or cap-exempt)

While most potential employers must register with the H-1B lottery, some may be exempt from that requirement. The following types of employers are considered “cap-exempt”:

Public or non-profit institutions of higher learning (e.g., state universities);
Non-profit entities that are related to public or non-profit colleges or universities;
Non-profit research organizations;
Government research facilities.

Other Employment-based Nonimmigrant Visa Statuses

There are quite a few employment-based nonimmigrant visas, that employers utilize to employ foreign nationals:

O-1 – This is for individuals who have demonstrated an “extraordinary ability” in the sciences, education, business, or athletics (O-1A) or in the arts, including television and motion pictures (O-1B). The initial validity of an O-1 visa is up to 3 years but may be extended in 1-year increments depending on the time needed to complete the initial project.
H-2 – Some jobs are seasonal or have periods of peak need during the year. Both skilled and unskilled workers may be required to meet those temporary demands. H-2A visas are specifically for workers in agriculture; H-2B visas are for non-agricultural workers. H-2 visas are normally issued with a 12-month validity and may be extended to a maximum of 36 months.
I – These visas are for workers in the media industry who are employed by a foreign press or media service.
L-1A – An executive or a manager in a foreign business may be permitted to work in the U.S. if The foreign business has a qualifying relationship with a U.S. company and that U.S. company is transferring the executive or manager to one of its U.S. offices. Under certain circumstances, the foreign business may also be allowed to create a “new office” and transfer a manager or executive to oversee the opening of the business. The maximum initial validity of L-1A visas depends on which of those reasons is used to apply. However, all L-1A visas may be extended to a maximum of 7 years.

L-1B – A foreign business that wishes to transfer an employee who is not a manager or executive may use the L-1B classification if the candidate possesses “specialized knowledge” that is integral to the operations of the business. The maximum validity of all L-1B visas is 5 years.
P-1A – These visas are for athletes (and their essential support personnel) who are:
- Members of their country’s internationally recognized professional athletic associations, or;
- Part of an amateur league that is at the highest level of their country’s amateur sports.

The P-1A initial period of validity depends on the duration of the event whether the applicant is an individual player or a team player.

Individual players: Up to 5 years, extendable to 10.
Team players: Up to 1 year, extendable in 1-year increments until their event is complete.
P-1B / P-2 / P-3 – These three visas are all available to workers in the entertainment industries:
- For members of an internationally recognized entertainment group (P-1B);
- For individual or group performers participating in a reciprocal exchange program between U.S. and foreign organizations (P-2);
- For performers, or teachers and coaches in the arts, who are participating in an entertainment program that is culturally unique (P-3).

Each of these entertainment-industry-based visas is initially valid for up to 1 year and may be extended in 1-year increments for the duration of the primary project.

R-1 – This classification is for ordained ministers or other workers in religious vocations, allowing them to work for a non-profit religious organization that is associated with their denomination or order. The initial validity of R-1 visas is up to 30 months and may be extended up to another 30 months, for an overall maximum of 60 months.

Special Visas for People from Specific Countries

Some visas may be available to you depending on the country you come from.

E-1 / E-2 – There is a list of over 80 countries with whom the United States has entered into a treaty of commerce and navigation. These visas are for citizens of those countries, who want to:
- Engage in international trade (E-1), or;
- Make a substantial capital investment into a U.S. business or develop and create a U.S. business (E-2) and manage the investment or have an essential skill for the company.

Both of these visas may be granted for an initial validity of up to 2 years and may be extended in 2-year increments so long as the nonimmigrant continues to maintain nonimmigrant intent.

E-3 – This is for citizens of Australia who work in specialty occupations requiring advanced degrees (the same qualifications as for the H-1B). An E-3 visa may be initially valid for up to 2 years and (with some exceptions) can be extended in 2-year increments indefinitely.
TN – The U.S. North American Free Trade Agreement (NAFTA) was established in 1994 to open up trade possibilities between the U.S., Canada, and Mexico. Citizens of those countries may come to the U.S. to work in a professional capacity (e.g. in science, education, engineering, medicine, law, economics, etc.). TN visas are initially valid for up to 3 years.

We’ll Work With You And Your Potential Employer

If you want to obtain a nonimmigrant, work-based visa to the U.S., our experienced immigration attorneys at Levin and Pangilinan PC can help you navigate the complex immigration regulation scheme to determine your (or your employer’s) best solution. We will work with you and with your potential employer to ensure that your application is completed accurately and promptly, giving you the best chance of success. Let’s talk today!

The information provided in this blog does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this blog are for general informational purposes only.

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FAQs about H-1B Alternatives

Q: What is the L-1 visa, and how does it compare to the H-1B visa for intracompany transfers?

A: The L-1 visa is for intracompany transfers, allowing multinational companies to transfer employees to U.S. offices. Unlike the H-1B, it doesn’t require a lottery and has no annual cap. It’s suitable for managers, executives, or specialized knowledge employees.

Q: What are the key differences between the E-2 visa and the H-1B visa for investors and entrepreneurs?

A: The E-2 visa is for investors from treaty countries who want to start or invest in a business in the U.S. Unlike the H-1B, it doesn’t require a job offer from an employer and can be a great alternative for entrepreneurs looking to launch or invest in their own ventures.

Q: Are there alternatives to the H-1B visa for individuals from Canada or Mexico?

A: Yes, the TN visa is an option for Canadian and Mexican professionals seeking to work in the U.S. It’s based on the USMCA agreement and covers various professions, making it a suitable alternative to the H-1B for qualified individuals from these countries.