Navigating the complex landscape of U.S. immigration can be challenging, especially when faced with the disappointment of not being selected in the H-1B lottery. However, there are alternative visa options that may provide avenues for your professional pursuits in the United States. In this exploration, we’ll delve into several potential alternatives, each with its own set of eligibility criteria and considerations.

O-1A Visa: Individuals with Extraordinary Ability or Achievement

The O-1 visa is suitable for individuals who have extraordinary ability or achievement in fields of science, arts, education, business, athletics, or motion picture and television. The petitioning U.S. employer must establish the alien’s extraordinary ability or achievement by submitting evidence that the foreign national is coming to the U.S. to continue to work in the field and that he or she meets the evidentiary criteria.

This classification is a useful alternative to the H-1B visa because it is neither cap-subject nor limits the time that an individual can remain in the U.S. on O-1 status. The extraordinary ability standard for O-1 is met by “sustained national or international acclaim.” To qualify, you must demonstrate a high level of expertise, recognition, and sustained accomplishment. This visa is particularly suitable for those who have received significant awards, and recognition, or have a proven track record of excellence.

Another benefit for O-1 holders is 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 O-2 criteria. We recently helped a highly accomplished actor obtain an O-1B visa! Check out the success story here.

L1 Visa for Temporary Workers

The L-1 visa is geared towards intracompany transfers, allowing multinational companies to transfer employees from an overseas office to a U.S. office.

The L-1 visa is an option for companies with offices in the United States who wish to transfer employees to the US temporarily. 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.

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. 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 suitable choice.

Check out this recent L-1 success story and how we proved a qualifying relationship between the foreign and U.S. entities.

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. This is not a requirement with the L1 visa. Another critical factor to consider is your L-2 spouse’s is able to work in the U.S.

TN Visa for Canadian and Mexican Professionals

The TN visa was created under NAFTA agreement (updated as the USMCA agreement) which allows certain citizens of Canada and Mexico to enter the U.S. under the non-immigrant TN status. It enables Canadians and Mexicans to temporarily work in the U.S. in a NAFTA-approved professional occupation as long as they meet the qualifying criteria. This visa allows professionals to work in the U.S. in specific occupations such as engineers, scientists, and computer systems analysts. The TN visa is initially granted for up to three years and can be renewed.

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 based on time spent outside the U.S. Thus, the indefinite extensions on the TN visa make it more appealing to some people than the H-1B visa.

E-1 Treaty Trade and E-2 Treaty Investor

If your goal is to start or invest in a business in the U.S., the E visa may be a viable option. This visa is for individuals from countries that have a treaty of commerce and navigation with the U.S. To qualify, you must make a substantial investment in a U.S. business and play an active role in its operations. The investment must be “at risk,” meaning it’s subject to potential loss. Alternatively, the U.S. business may also draw revenue from the sale or purchase of goods or products between the U.S. and applicable countries.

Similar to visas discussed above, this class of status provides work authorization for spouses and also permits employees from the same treaty country to enter the U.S. as essential workers or managers. This visa is also renewable for up to 2-year increments indefinitely.

E-3 Visa: Specialty Occupation Workers from Australia

The E-3 visa classification applies only to nationals of Australia as well as their spouses and children. E-3 principal applicants must be going to the United States solely to work in a specialty occupation as similarly required for an H-1B approval. The spouse and children need not be Australian citizens.

The E-3 visa is a unique and exclusive work visa available to Australian nationals seeking employment in the United States. Established by the Australia-United States Free Trade Agreement, this non-immigrant visa is designed for individuals with specialized skills in a particular professional field. Mainly utilized in specialty occupations that require at least a U.S. Bachelor’s degree equivalent such as science, technology, engineering, or mathematics, the E-3 visa requires a valid job offer, a relevant academic or professional background, and a Labor Condition Application (LCA) approved by the U.S. Department of Labor. E-3 visa holders can work and live in the U.S. for up to two years, with the option for renewal indefinitely. Similar to the H-1B, there are prevailing wage requirements for the area you intend to work based on the position classification.

A benefit of the E-3 visa over the H-1B however, is not having to pay some of the additional government filing 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 Form with USCIS.

H-1B1 visa for nationals of Singapore or Chile

While not a direct alternative, the H-1B1 visa is worth exploring, especially if you are a citizen of Chile or Singapore. This visa is specifically for professionals from these countries and allows them to work in the U.S. in a specialty occupation. The H-1B1 visa has a separate quota from the regular H-1B and is often underutilized, increasing the chances of selection.

J-1 Exchange Trainee or Intern

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 United States 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.

The J-1 visa is for individuals participating in exchange programs, including work and study programs. While it may not be a long-term solution, it can provide valuable experience and networking opportunities. Some J-1 categories may allow you to work for a designated period, enhancing your skills and connections.

One of the biggest differences between the J1 visa and H-1B visa is that some countries or programs require a two-year home residency physical presence requirement that requires you to return to the home country 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.” Be cautious as some programs cannot be waived especially if funding was provided by either the U.S. or the home country such as Scholarships especially the Fulbright which is nearly impossible to obtain.

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).

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. 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.

H-2B Visa for Temporary Non-Agricultural Workers

The H-2B program is designed so U.S. employers can fill temporary and seasonal 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, and 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 may familiarize yourself with the full H-2B requirements. 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.

The 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 difference is that the H-1B visa is dual intent which means you can pursue a green card while in H-1B status. The H-2B visa does not permit dual intent, so once it’s expired, you must depart the U.S. before being able to pursue a green card strategy or a dual intent visa like the H-1B or L-1.

H-3 Trainee Visa

The H-3 visa is a temporary non-immigrant visa in the United States designed for individuals seeking training unavailable in their home country. Primarily used for vocational or non-academic training, the H-3 visa is employer-sponsored and allows foreign nationals to come to the U.S. to receive hands-on experience in a specific field. The training must enhance the participant’s career in their home country, and the program should not be designed to provide productive employment. The H-3 visa is valid for up to two years, and extensions are not typically granted.

Entrepreneur Parole

For applicants who have or will begin operations of a U.S. business whose funds are derived from U.S. investors or qualifying government entities, Entrepreneur Parole status may be available. The International Entrepreneur Program (IEP) was created as a catch-all for those individuals who can and will start a U.S. business and have already secured the necessary funds of $250,000 from private U.S. investors or at least $100,000 from qualified Federal, state, and local government entities. If granted, the parole status will allow the applicant to live, work and travel in the U.S. for 30-month increments. Renewals are subject to demonstrating growth including employment of at least 5 U.S. workers and a cumulative receipt of at least $500,000 since inception. Alternatively, the applicant must demonstrate $500,000 revenue plus 20 percental annualized growth.

This status provides alternatives to the out-of-pocket investment needed for some of the visas above and the requirements to maintain foreign offices and worksites.

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, this may not be feasible for those who are subject to historic country backlogs in China, India, Mexico and the Philippines. For those who are not subject to years of backlog, opportunities may be available from either an employer-based green card process or self-sponsorship through the National Interest Waiver. If an individual with an advanced degree equivalent can successfully demonstrate exceptional ability in a field of National Interest, they may be eligible to receive a green card within two to three years depending on overall processing times. This petition requires a substantial evidentiary threshold to demonstrate that the applicant is best situated to positively impact an area of National Interest.

Alternatively, for those with significant financial resources, the EB-5 program offers a path to U.S. permanent residency (green card) through investment. To qualify, you must invest a certain amount of capital (at least $1M) in a new commercial enterprise that creates or preserves jobs in the U.S. This option requires a substantial investment from personal funds and careful consideration of the associated risks.

H-1B Alternatives Next Steps

News continues to change regarding proposals to increase the H-1B cap limit or improve the equity in lottery selection. While there currently isn’t any formal action taken to do so, keep an eye on our blog for the latest developments.

As you can see, there are quite a few alternatives to the H-1B visa if you happen not to be selected for the H-1B FY 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.