Alternatives to the H-1B Visa Program: Way Forward for Employers

By: Gladys Gervacio 

The H-1B program is the go-to option for companies looking to bring skilled foreign workers to the United States. However, now that the H-1B cap registration period has closed for the Fiscal Year (FY) 2024, it is essential for employers to understand the alternatives to the H-1B visa.

Notable alternative nonimmigrant visas that companies can consider when looking to hire foreign talent include:

1. O-1 Visa: The O-1 visa is for individuals with extraordinary ability or achievement in the sciences, arts, education, business, or athletics. This visa requires an individual to demonstrate their extraordinary ability or achievement by providing evidence such as awards, publications, and media coverage. It can be renewed indefinitely.
2. L-1 Visa: The L-1 visa is for intra-company transferees who are executives, managers, or employees with specialized knowledge. This visa allows multinational companies to transfer employees from their foreign office to their US office.
3. TN Visa: The TN visa is a visa category created under the North American Free Trade Agreement (NAFTA) and is available to Canadian and Mexican citizens who are professionals in certain occupations. This visa category is similar to the H-1B visa but has less stringent requirements. TN visa holders can work in the US for up to three years and can renew their visa indefinitely.
4. J-1 Visa: The J-1 visa program allows individuals to participate in work-and-study-based exchange programs in the United States. It is designed to promote cultural exchange and improve mutual understanding between people of different countries.
5. E-3 Visa: The E-3 visa allows Australian citizens to work temporarily in the United States in a specialty occupation. It requires a job offer, a labor condition application, and a bachelor's degree or equivalent experience in the relevant field.
6. E-2 Visa: The E-2 visa is for entrepreneurs and investors who are nationals of a treaty country with which the US has a qualifying treaty. This visa requires the individual to invest a substantial amount of capital in a US business. The E-2 visa is a non-immigrant visa and does not provide a direct path to permanent residency. However, it can be renewed indefinitely.

Aside from these nonimmigrant visas, employers can also look into the H-1B category itself.  Although it is quite possible that the H-1B cap has been reached when USCIS conducted its initial lottery, not all H-1Bs are counted under this cap:

1. Cap-exempt beneficiaries: Foreign nationals who are already in the US on H-1B status are only counted against the cap in the year that the original H-1B was approved. So, a foreign national with an H-1B for another company can be hired with a simple H-1B change of employer petition.

In addition, those individuals who are outside the US, have previously held H-1B status in the US and have not used up their maximum 6 years of stay are cap-exempt.

Employers can file H-1B petitions for them and can recapture time spent outside the US at any time before the beneficiary uses the full 6 years.[1]

2. Cap-exempt petitioners: The cap-exempt entities are:

1. Institutions of higher education;
2. Non-profit entities which are “related to” or “affiliated with” institutions of higher education;
3. Non-profit research organizations;
4. Government research organizations.

The term “related or affiliated nonprofit entity” include nonprofit entities that meet any one of the following conditions: (1) the non-profit is connected or associated with an institution of higher education through shared ownership or control by the same board or federation; (2) the non-profit is operated by an institution of higher education; (3) the non-profit is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or (4) the non-profit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher education for the purposes of research or education; and a fundamental activity of the non-profit is to directly contribute to the research or education mission of the institution of higher education. [2]

For non-profit research organizations and the government research organizations, their primary mission should be the performance or promotion of basic research and/or applied research.

Further, even if the employer itself is not cap-exempt, if majority of the beneficiary’s duties will be performed at a qualifying institution, and those duties directly and predominately further the normal, primary, or essential purpose, mission, objectives of the institution of higher education or nonprofit or government research, then the employer can also file a cap-exempt petition.[3]

3. Concurrent H-1B employment with a cap-exempt entity: A cap-subject employer is permitted to file a concurrent H-1B petition for a beneficiary currently employed by a cap-exempt entity. However, the validity of the cap-subject employment cannot go beyond the validity of the cap-exempt employment.[4]

Indeed, the H-1B visa is the most popular visa category for bringing skilled foreign workers to the US, but there are several alternative visa categories that employers can consider. Each visa category has its own unique requirements, benefits, and limitations, so it is important to consult a member of the experienced Chugh, LLP immigration team to determine the best option for your specific situation.Top of Form