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Creative immigration options outside of the H-1B

interstride logo by Interstride
June 15, 2023

This blog post was co-authored by Scott Armstrong, Senior Associate at Fragomen, and Michelle Shepard, Attorney at Fragomen.

The H-1B is the most popular work visa in the US. Unfortunately, there is a limit on how many visas are given each year, and demand is high. The initial lottery was held at the end of March of this year. Some years, there are multiple lotteries until the cap is reached. However, because of the increasing demand for H-1B visas, experts expect that all available visas will be given out based on this initial lottery, and there will be no subsequent lotteries this year.

Cap-Exempt H-1B Petitions

An H-1B visa requires employer sponsorship, and the US employer applies on your behalf. Several types of employers are exempt from the visa limit and the lottery selection process. If you were not accepted in the H-1B lottery, try to find a job with a cap-exempt employer:

  • Colleges or universities
  • Non-profit research orgs
  • Government research orgs

Cap-exempt employers can file an H-1B petition at any time versus cap-subject employers who must file on designated dates with a start date of no earlier than October 1 of that year. Furthermore, concurrent status is allowed. That means if you got H-1B status with a cap-exempt employer, it may be possible to also work for a cap-subject employer at the same time without having to go through the lottery.

If you currently have an H-1B visa and are applying for an amendment, extension, or change of employer, you are also cap-exempt. International employees who previously held an H-1B visa that expired, but didn’t use all six years of work authorization, are exempt as well. Basically, if you already went through the H-1B lottery previously, you will not be subject to it again. Even if you change employers.

Alternatives to the H-1B Visa

Did you miss the H-1B cap lottery deadline or apply but did not get selected? In this section, we will cover the following US work authorization alternatives:

  • Optional Practical Training (OPT) for international students
  • Citizenship-specific visas
  • L-1 intracompany transfer visa
  • O-1 extraordinary ability visa

OPT/STEM OPT for Students on F-1 Visas

OPT grants 12 months of employment authorization for international students. The job must be related to your field of study to qualify. STEM graduates are eligible for an extension of up to 24 months for a total of three years of work authorization. For STEM extensions, your employer must participate in the USCIS’ E-Verify program.

Citizenship-Specific Statuses

Visa:E-3 visa for Australian citizensH-1B1 visa for Chilean and Singaporean citizensTN visa for Canadian and Mexican citizens
Requirements:A minimum bachelor’s degree in a specific field must be required for the position

Labor Condition Application required

Job must be in a specialty occupation with a minimum bachelor’s degree required

Labor Condition Application required

Job must be on USMCA (formerly NAFTA) occupations list
How to Apply:Apply directly at US consulateApply directly at US consulateCanadians may apply at the border or airport

Mexicans must apply at US consulate

Duration:Lasts 2 years with extensions available in 2-year increments

No limit on extensions, but no dual intent is allowed, so you must show intent to return to Australia

Lasts 1 year with extensions available in 1-year increments

No limit on extensions, but no dual intent is allowed, so you must show intent to return to your home country

Lasts 3 years with extensions available

No limit on extensions, but no dual intent is allowed, so you must show intent to return to your home country

Additional Details:Cap: 10,500 per year

Spouse also has work authorization

Caps: 1,400 visas for Chileans and 5,400 visas for Singaporeans per year

These caps are part of the H-1B cap; however, they are never met

No annual cap

No Labor Condition Application is required, so faster processing times

L-1 Visa for Intracompany Transfers

The L-1 visa is for transfers from a company in another country to a related corporate entity in the US. There are two types of L-1 visas:

  • L-1A for executives and managers – lasts seven years
  • L-1B for specialized knowledge workers with evidence – lasts five years

To qualify for the L-1 visa, you must have worked for at least one year in the past three years in another country. Examples of qualifying related corporate entities include a parent company, subsidiary, affiliate, or branch. The L-1 is a dual intent visa, so you can apply for a green card while on this temporary work visa. The visa holder’s spouse can also work immediately under L-2 status (which is not allowed with H-1B visas).

O-1 Visa for Persons With Extraordinary Ability

An O-1 visa is for an individual with demonstrated extraordinary ability in one of the following areas:

  • Sciences
  • Education
  • Arts
  • Business
  • Athletics

Like the H-1B and L-1 visas, this immigration option requires employer sponsorship. Qualifying for an O-1 visa also requires showing that you are at the top of your field by meeting at least 3-of-10 criteria.

While the standard is high for O-1 visa approval, international students may be able to start working on meeting the criteria while they are still in school. Look for opportunities to join professional organizations, attend conferences, and publish literature.

O-1 visas are granted for up to three years. The visa duration could be granted based on the amount of time the job/event/activity will last depending on the specific O-1 category and position. Visa holders can renew an unlimited number of times in one-year increments.

Get Creative to Find the Best Immigration Solution

If you didn’t win the H-1B lottery, don’t panic. Hope is not lost. There are other options for you to remain in the US from student visa work authorization to intracompany transfers. The best solution for you may be a less popular visa or green card pathway.

Fragomen is the oldest and largest immigration firm in the US. Our immigration experts have years of experience finding creative solutions to the most challenging immigration situations. Contact us today for support finding the right visa for your specific circumstances.

The contents of this post are intended for informational purposes only and do not constitute legal advice.

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