Possible Alternatives to the H-1B Visa By Manju Kalidindi, Esq.
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Possible Alternatives to the H-1B Visa
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H-1B cap periodThe H-1B cap period opens on April 1st every year. This year, by April 5, 2019, the U.S. Citizenship and Immigration Services (USCIS) received a sufficient number of petitions needed to reach the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020. On April 11, the USCIS completed the H-1B Cap Random Selection Process and reached the 20,000 Advanced Degree Exemption Cap. This year, the USCIS received approximately 201,011 H-1B petitions compared to 190,000 in 2018 and 199,000 in 2017. As of this writing, most H-1B applicants have already found out whether their H-1B petition made the lottery or not. For some applicants, this may have been the second or third attempt. What can you do if your petition was not picked in the lottery? There are alternatives to the H-1B that, for some individuals, may be viable options. Cap-Exempt H-1B PetitionsCap-Exempt H-1B Petitions
(A) is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 USC 1001(a)), or a related or affiliated nonprofit entity; or (B) is employed (or has received an offer of employment) at a nonprofit research organization or a governmental research organization. Indirect employment may still qualify as cap-exempt if the employee will spend the majority of work time performing job duties at either of the above entities and those duties “directly and predominantly further the essential purpose, mission, objectives or functions” of the qualifying entity. L-1 Intracompany Transferee
To qualify, the named employee must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations. L-1B: This nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one. To qualify, the named employee must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations. E-2 Treaty Investors The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to enter and work in the United States based on a substantial investment in a bona fide enterprise. The E-2 visa can be extended indefinitely provided all E-2 requirements are met. *NOTE: Bangladesh, Pakistan and Sri Lanka are signatories to the E-2 while India is not. E-3 The E-3 nonimmigrant visa classification applies to nationals of Australia in certain specialty occupations. In order to qualify for the E-3, the individual must be a national of Australia; have a legitimate offer of employment in the United States; possess the necessary academic or other qualifying credentials and will fill a position that qualifies as a specialty occupation. O-1
To qualify for an O-1 visa, the individual must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability. TN The Trade National (TN) nonimmigrant visa allows qualified Canadian and Mexican citizens under the North American Free Trade agreement (NAFTA) temporary entry into the United States to engage in business activities at a professional level. To qualify for a TN, the individual must be a citizen of Canada or Mexico; the profession qualifies under the regulations; the position in the United States requires a NAFTA professional; the individual has a prearranged full-time or part-time job with a U.S. employer (but not self-employment); and the individual has the qualifications to practice in the profession. |
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