Alternatives to the H-1B Lottery
The H-1B visa program is one of the most popular visa options for foreign nationals seeking employment in the United States. The H-1B visa program is also an incredibly useful tool for companies looking to retain the services of an employee from another country. When creating the H-1B visa category, however, Congress mandated that a cap or quota would be placed on the amount of visas available. There are also carve-outs in the cap for holders of advanced degrees (i.e., the advanced degree exemption or “master’s cap”). This means that despite the popularity and utility of the program, the number of visas available each year is limited and not everyone who applies can be selected in the H-1B lottery. Fortunately, there are other visa options available for foreign nationals who were not selected in the H-1B lottery. In this blog post, we will outline some of these options.
1. TN visa
The TN visa is a nonimmigrant visa that allows citizens of Canada and Mexico to work in the United States in certain professional occupations. This visa is available under the United States-Mexico-Canada Agreement (USMCA), which replaced the North American Free Trade Agreement (NAFTA), and requires a job offer from a U.S. employer in a qualifying occupation. The list of occupations/professions and qualifications can be found here and here.
The family (spouse and kid(s) under 21) of TN visa holders who accompany them to the U.S., or follow to join later, may be eligible for TD nonimmigrant visas. TD visa holders may not work under this classification, but enrollment in educational programs is permitted.
2. E-3 visa
The E-3 visa is a nonimmigrant visa available exclusively to citizens of Australia. This visa allows Australian nationals to work in the United States in specialty occupations for up to two years, with the possibility of extension.
The family (spouse and kid(s) under 21) of E-3 visa holders who accompany them to the U.S. may be eligible for dependent E-3 classification. Spouses with valid E-3 or E-3S status can work in the U.S. The E-3 visa holder’s children are not authorized to work in the U.S.; however, the E-3 visa holder’s children do not receive work authorization although they can attend school.
3. L-1 visa
The L-1 visa is a nonimmigrant visa available to foreign nationals who work for a multinational company with a branch, subsidiary, or affiliate in the United States. This visa allows employees to transfer from their foreign company to their U.S. company for a temporary period of time.
To qualify for an L-1 visa, you must have worked for the branch, subsidiary, or affiliate for at least one year and be employed in a managerial, executive, or specialized knowledge capacity.
Foreign nationals not selected in the H-1B lottery may want to discuss global employment options with their employer to help establish L-1 eligibility for the future.
The family (spouse and kid(s) under 21) of L-1 visa holders who accompany them to the U.S. or join them later may be eligible for L-2 nonimmigrant classification. Spouses with valid L-2 or L-2S can work in the U.S. The L-2 visa holder’s children are not authorized to work in the U.S.
4. O-1 visa
The O-1A visa is a nonimmigrant visa available to foreign nationals who possess extraordinary ability in the sciences, arts, education, business, or athletics. The O-1B visa is a nonimmigrant visa available to foreign nationals who possess extraordinary ability in the motion picture or television industry. This visa requires a job offer from a U.S. employer, a demonstrated record of extraordinary achievement in the applicant's field, and national or international recognition of those achievements.
The family (spouse and kid(s) under 21) of O-1 visa holders who accompany them to the U.S. may be eligible for O-3 nonimmigrant visas. O-3 visa holders may not work under this classification, but entry into educational programs is permitted.
5. F-1 visa with Curricular Practical Training (CPT)
Foreign nationals who are full-time students actively pursuing a bachelor’s degree or higher from a Student and Exchange Visitor Program (SEVP)-approved university or college in the U.S. may be eligible for Curricular Practical Training (CPT). CPT allows the F-1 visa holder to work in the United States and gain academic credit and practical experience in their field of study. CPT employment may be available to some F-1 visa holders on the first day of their degree program, rather than after a full academic year, enabling them to pursue their degree and have work authorization from day 1.
Full-time employment, internships, cooperative education, and other types of practical work experience directly related to the student’s degree program/major are all options available to an F-1 visa holder authorized for CPT employment.
The family (spouse and kid(s) under 21) of F-1 visa holders who accompany them to the U.S. may be eligible for F-2 classification. F-2 dependents may not work under this classification.
6. F-1 visa with Optional Practical Training (OPT)
Foreign nationals who have recently graduated from a U.S. university or college may be eligible for Optional Practical Training (OPT), which allows them to work in the United States for up to 12 months (or up to 36 months in some cases) after completing their degree. This visa requires a job offer from a U.S. employer and the job must be directly related to the student’s field of study.
The family (spouse and kid(s) under 21) of F-1 visa holders who accompany them to the U.S. may be eligible for F-2 classification. F-2 dependents may not work under this classification.
7. J-1 visa with J-1 Training/Internship
The J-1 visa is a nonimmigrant visa available to foreign nationals who wish to participate in educational and cultural exchange programs in the United States. The J-1 Training/Internship program allows participants to work in the United States for up to 12 months in a field related to their academic or professional background. To qualify for the J-1 Training/Internship program, you must have a job offer from a U.S. employer and your job must be directly related to your academic or professional background.
The family (spouse and kid(s) under 21) of J-1 visa holders who accompany them to the U.S. are entitled to J-2 classification. J-2 nonimmigrants may receive employment authorization to work in the U.S., but their wages cannot be used to support the J-1 visa holder.
8. Canadian Employment
Depending on the foreign national’s situation, employment in Canada can also be considered if they are not selected in the H-1B lottery. This may include employment at a Canadian office/branch of the U.S. company or immigration to Canada and continued employment with the U.S. company from Canada. Canada and the U.S. share multiple time zones and travel between the two countries can be relatively straightforward, which reduces many of the obstacles encountered by U.S. companies with employees based outside of North America.
We recognize that not being selected in the H-1B lottery can be disappointing. But we hope this post shed some light on the other visa options available for foreign nationals who wish to work in the United States. The foregoing also provides options for employers to ensure the continued employment of a foreign national employee, whether that be in the U.S. or another country. Each of the visas we discuss has its own requirements and limitations, so it is important to consult with an experienced immigration attorney to determine which option is right for you and your situation.
If you wish to learn more about the H-1B visa program and lottery selection, please check out our primer on the subject.
Disclaimer: The information provided in this blog post does not, and is not intended to, create a legal relationship between the reader and Immigration Law Group LLP. All information and content found on this site, including links to external sources, are meant for informational purposes only. Should you require legal advice on a specific matter, you can reach out to us online or call our office at (408) 432-9200.