Missed Out On An H-1B This Year? Here Are Some Potential Alternatives

Missed Out On An H-1B This Year? Here Are Some Potential Alternatives

March 30, 2023

We previously announced that USCIS has reached its annual quota for new H-1B cap registrations for Fiscal Year 2024 and has notified employers of the selection results. While we are awaiting official statistics from USCIS on the number of registrations they received this year, early reports indicate that there was a record number of registrants vying for one of the 85,000 slots.

So, what are your options if you have not been selected in this year’s lottery process? Although no new cap-subject H-1B hires may be made, employers and foreign nationals may be able to take advantage of other visa categories, as follows:

Cap-exempt H-1B: Some H-1B petitions are exempt from the cap by virtue of the type of petitioner or the type of work being done. These are petitions filed on behalf of a worker who is or will be employed at an institution of higher education or a related or affiliated nonprofit entity, and petitions filed on behalf of a worker who is or will be employed at a nonprofit research organization or a governmental research organization. Petitions for J-1 international medical graduates who have received waivers under the Conrad 30 program are also exempt from the cap.
B-1 – The B-1 category allows a foreign national to enter the United States to participate in business activities on behalf of a foreign employer. Generally, a person in B-1 status may not engage in productive employment in the United States. Allowable B-1 activities include consulting/meeting with business associates, attending a professional conference, participating in training, or negotiating contracts. The “B-1 in lieu of H-1” might be used where the foreign national would qualify for H-1B status, but their employer is not based in the U.S. and they are coming to the U.S. for a short period of time. This type of B-1 status does permit productive work in the U.S., but the person must be employed by and continue to be paid by the overseas employer.
E-3 – The E-3 category is limited to nationals of Australia and is capped at 10,500 per fiscal year, although that quota has never been filled. The substantive requirements of the E-3 are very similar to H-1B category. There must be an offer of employment in a “specialty occupation” and the individual must possess a bachelor’s degree or the equivalent in a field related to the employment.
TN – The North American Free Trade Agreement (NAFTA) between the U.S., Canada, and Mexico allows for simplified immigration travel between and among the three countries. For purposes of employment in the U.S., citizens of Canada and Mexico who are coming to the U.S. to work in certain professions may be eligible to enter in TN status. To qualify for TN status, the foreign national must be a citizen of Canada or Mexico, must have a prearranged offer of employment in the U.S., and must meet the educational/experience qualifications for the occupation, which are defined in the NAFTA agreement. In addition, individuals must intend to work in one of the occupations listed in the NAFTA agreement.
E-1 / E-2 – The E-1/E-2 categories require that the person be a national of a country with which the U.S. has an appropriate treaty of commerce and that the prospective employer is majority owned by nationals of that same treaty country or by corporate entities having the “nationality” of the treaty country. These owners/corporate entities must either have made a “substantial” investment in the U.S. or there must be “substantial” trade between the U.S. and the treaty country. In addition, the offered position must be executive or supervisory, or involve “essential skills.”
F-1 – The F-1 student visa category permits employment under various circumstances, most commonly through Curricular Practical Training (CPT) or Optional Practical Training (OPT). There is a 12-month limit on OPT unless the person has a designated STEM (Science, Technology, Engineering, or Mathematics) degree and the employer participates in the E-Verify employment verification program, in which case an additional 29 months of post-graduation OPT is available.
L-1 – The L-1 visa category allows U.S. employers to transfer employees of related overseas entities to work temporarily in the U.S. The U.S. and foreign entities must have a qualifying corporate relationship (parent/subsidiary, affiliate, etc.), the employee to be transferred must have worked for the related entity overseas for at least one year, and the offered position must be managerial/executive or must involve “specialized knowledge.”
O-1 – The O-1 category is available for persons of extraordinary ability who can document sustained national or international acclaim in their field.

Finally, there are various visa categories available for training that might be useful in certain circumstances.

Please contact us to schedule a consultation with one of our attorneys if you wish to learn more about your potential eligibility for one of these options.