In addition to H-1B and TN1 visas, there are many other options available for overseas professionals to enter the US job market. Below, we will be highlighting a few as time goes on, to prove that it is possible to transition to the United States even when the H-1B visa quota is filled (which generally happens very quickly these days). Don’t lose heart; there is a way.
The Exchange Visitor (J) non-immigrant visa category is for individuals approved to participate in work-and study-based exchange visitor programs. It provides countless opportunities for international candidates looking to travel and gain experience in the United States. The multifaceted programs enable foreign nationals to come to the U.S. to teach, study, conduct research, demonstrate special skills, or receive on the job training for periods ranging from a few weeks to several years.
Each program has a different maximum duration. The following categories exist:
College and University Student
Professor and Research Scholar
Secondary School Student
Summer Work Travel
Candidates and potential employers must work through Designated Sponsors (organizations that administer exchange programs). These are most often schools or government agencies:
Every H-1B candidate should carefully review his/her resume with an attorney to determine of candidate could meet O-1 eligibility. It is definitely worth the effort. Generally, O-1 visas are available to individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. There is no numerical limitation for O-1; therefore, there is no lottery. Petition can be filed by employer any time with any start date, and O-1 candidates if approved would not have to wait until October 1, like an H-1B candidate.
Effective May 26, 2015, certain H-4 Spouses will be eligible to apply for work authorization, if their H-1B spouses are either 1) the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or 2) Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. For more details please visit, H-4 EAD Rule.
L-1A classification is available to those individuals who have worked for at least one continuous year during the last three years (prior to entering the US) in an executive or managerial capacity at an overseas company, that is related to US company as a parent, subsidiary, affiliate, or branch of the US company. Important thing to note here is that, such Individual may be seeking L-1A to be employed at an already established related US company, or could be seeking an L-1A classification to open a new company in US. This option could be really useful to prospective entrepreneurs, multinational employees, or candidates with family businesses overseas in which they worked as a manager/executive for the qualifying period. Also note that the business in US could be different from business overseas. Only requirement is that foreign and US Company should be related to each other in a specific manner. There are several other advantages of L-1A, including faster processing of green card under EB-1 category and availability of work permits to dependent family members in L-2 status. There is no numerical limitation for L-1A visa, therefore there is no lottery. Petition can be filed by employer anytime with any start date, and L-1A candidate if approved would not have to wait until October 1, like an H-1B candidate.
Under the recently changed rules, that expanded scope of L-1B visa, any individual who worked for at least one continuous year during the last three years (prior to entering the US) in an “Specialized Knowledge” or “Advanced Knowledge” capacity at an overseas company, that is related to US company as a parent, subsidiary, affiliate, or branch of the US company. The expansion of term “Specialized knowledge” and inclusion of “advanced knowledge” professionals have expanded the scope of L-1B and several more professionals can now be qualified under the new set of rules, that go into effect on August 31, 2015. There is no numerical limitation for L-1B visa, therefore there is no lottery. Petition can be filed by employer anytime with any start date, and L-1B candidate if approved would not have to wait until October 1, like an H-1B candidate.
Interested candidates can file for change of status to F-1 or F-1 students can continue to maintain their F-1 status and explore programs that provide options of CPT (Curricular Practical Training). A valid CPT serves as a valid work authorization for approved employer. Please note that candidates must carefully review the college/university and the program to ensure that CPT is in compliance with USCIS rules and regulations. Lately, several students have been experiencing problems with USCIS when they use CPTs, that turn out to be not in compliance with established regulations.
Students studying in science, technology, engineering or mathematics (“STEM”) fields, are eligible to receive an additional 17-month extension of post-graduate OPT so long as they will work for E-Verified Employers in the related field. Non – STEM graduates, however are not eligible for this additional 17 month extension. They can return to school for further studies and if a student enrolls in a new academic program of a higher level (master’s after bachelor’s degree, or PhD after master’s) the student will become eligible for a new 12 month OPT cycle.
Certain employers and job positions are not subject to H-1B cap. Which means, they can file H-1B visa any time, with any start date, and are not subject to numerical restrictions. H-1B workers who are petitioned/employed by or work at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap. Note: Not all non-profits or government employers are cap exempt. And on the other hand, some for-profit employers can file under cap-exemption if the H-1B Beneficiary will be performing his/her job duties at a qualifying cap-exempt institution.
H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap.
H-1B physicians who have received a J-1 Conrad 20 waiver of the 2-year home/ foreign residency requirement described in section 214(l)(1)(B) or (C) of the Act , based on work in a health professional shortage area are also exempt from H-1B cap.
If Beneficiary has an approved H-1B petition (whether through a cap-subject or cap-exempt employer), such Beneficiary can file a concurrent H-1B (for cap-subject or cap-exempt employer), without having to go through the cap. For example: Let’s say that Beneficiary is employed by a cap exempt non-profit research organization on an H-1B and was never selected in the cap before. He can work for Employer B, a cap-subject employer, if Employer B files a “concurrent” H-1B petition on Beneficiary’s behalf. Note: Concurrent employment or concurrent H-1B has its own limitations and Beneficiary must maintain his status and employment at principal H-1B petitioner.
The H-3 Trainee visa is designed for providing training that is not available in the trainee’s home country, and which benefits the trainee’s career abroad. H-3 trainees must restrict their work activities to training, and cannot engage in productive employment unless it is incidental and necessary to the training. Candidates must evaluate this option seriously with their attorney, because if qualified, they could stay as a trainee for 24 months.
Qualified Chilean and Singaporean citizens have 6,800 H-1B1 visas annually (Chile – 1400 and Singapore – 5400). The overall H-1B cap is reduced by the number of H-1B1 visas issued. H-1B1 visas and visa petitions are approved in one-year increments, but unlike H-1B there is no six-year maximum limitation on stays in H-1B 1 status.
E-3 visa classification is available to Australian Citizen. The E-3 visa is similar in many respects to the H-1B visa. Australian citizens applying for an E-3 visa are also no longer subject to the 65,000 annual visa limit for H-1B visas and there is a separate annual quota of 10,500 E-3 visas, which hardly gets filled. Important differences include the fact that spouses of E-3 visa holders may work in the United States without restrictions (unlike other US non-immigrant visas, even the TN visa issued to Canadian and Mexican citizens), even if they are of a different nationality. E-3 visa is renewable indefinitely (in two-year increments) and the application process is much quicker and easier than H-1B.
Nationals of certain listed countries with treaties with the United States designed to promote trade and investment may obtain E-1/E-2 visa classification to work in the U.S. to develop and direct their investments or trade. E-1 classification (Treaty Trader) is available for companies that trade a substantial level of goods and services. E-2 classification (Treaty Investor) is available for individuals or enterprises that invest a substantial amount of funds in the United States with the prospect of job creation and operating a non-marginal enterprise. There is no specified minimum value threshold set for the investment. E visa is renewable indefinitely. Options if not selected in H-1B Lottery or H-1B Cap.
Upon marrying a US Citizen, alien spouse could become immediately eligible for adjustment of status to a permanent resident and work authorization. Upon marrying a Green Card Holder, alien spouse could become eligible to apply for adjustment of status to a permanent resident and work authorization when the priority date becomes current. An application for permanent residency, accompanied by an application for employment authorization, if approved may grant unrestricted work authorization in the United States.
It typically takes much longer to obtain an immigrant visa through employment based or family based immigration options, however, it is never too late to file and it is always advantageous to start the process sooner than later. Please note: Filing Immigrant Petition, without filing for adjustment of status, does not accord any right or permission to stay in the US. Employment based EB-1A, EB-1B, EB-1C is much faster – and priority date is almost always current for all nationals. EB-2 is little slower for oversubscribed countries like India and China, and could take upto years. EB-3 is the slowest and usually takes several years for all nationals.
B visa classification permits foreign alien to temporarily stay in the US for a limited time, not to exceed 6 month increment. B-1 can be used to participate in very limited/restricted business activities. Whereas, B-2 visa is just for pleasure/tourism. For those candidates, looking to just extend their stay in US, this option could be really valuable.
EB-5 visa (if numbers are available at the time of filing) could be an option for investors who are planning to invest at least $500,000 or $1 Million in the US, depending upon type of area. EB-5 could lead to a temporary/conditional green card in 8 to 14 months and if the EB-5 entreprise is successful in creating required qualifying jobs, EB-5 Beneficiary can file for permanent green card i.e. removal of conditions, 90 days before expiration of temporary green card.