Many companies and potential employees will be left without H-1B visas. Once the H-1B cap has been reached, companies often call Sy and Smith, PC to discuss potential non-immigrant visas alternatives to H-1B visas for foreign individuals. The following is an outline of potential H-1B alternatives.[1] If your company is interested in exploring one of the following options, please contact us at contact@sysmithlaw.com or at 858-746-9554.

Training/Internship

  1. F-1 STEM Optional Practical Training (“OPT”). This allows an individual who is currently in OPT status to extend his/or her OPT for another 17 months (after the first 12 months of OPT has been exhausted). Therefore, this gives the individual another crack at an H-1B application for the following year.

In order to qualify, an individual must have a STEM eligible degree (science, technology, engineering or mathematics)[2]. The employer must be enrolled in the “E-verify” program and promises to report the individual’s departure within 48 hours.

  1. F-1 Curricular Practical Training (“CPT”). An individual can enroll in a new degree program and continue his or her F-1 status. An individual can then apply for CPT immediately if the degree program requires immediate participation in curricular practical training. Otherwise, an individual will need to wait until after he or she have been enrolled for full-time for one academic year.
  1. J-1 Training. The J-1 category covers training and internship positions. A trainee or intern trains or interns at a host company under the authority of a Department of State certified employer.

In order to qualify as a trainee, an individual must have a degree or professional certificate from a post-secondary institution and at least one year of prior work experience in the field (outside the USA) OR five years of prior work experience in the field (outside the USA).

  1. In order to qualify as an intern, an individual must be either enrolled in or pursuing studies at a degree or certificate granting post-secondary institution outside the USA or graduated from a degree or certified granting post-secondary institution outside the USA. The internship program is limited to 12 months.

Please note that one problem with the J-1 visa is that it requires many individuals to return back to his or her country of residence for two years before being able to return to the United States. A J-1 individual could apply for a two year home residency requirement waiver.

  1. H-3. An H-3 visa is a visa which allows an employer to provide instruction and training in the United States to an individual because that training and instruction is not available in their home country. The key is that the training program must be “designed primarily to provide productive employment.”  The H-3 individual can stay for up to two years. After the two years, the H-3 individual is not allowed to extend his or her stay,   be admitted to the USA in L or H status unless the individual has resided and been physically outside the USA for at least six months.

Non-Immigrant Employment Based Visas

  1. H-1B for Singapore and Chilean National.   The USA has special allotments for Singaporean and Chilean Nationals (“Fast Track Trade”). Singaporean Nationals receives up to 5,400 H-1Bs per fiscal year and Chilean Nationals receives up to 1,400 per fiscal year. These allocations are almost never met. Therefore, even if the H-1B cap has been reached, Singaporean and Chilean Nationals can continue to apply for the H-1B visa.
  1. E-3 for Australian National. An Australian National can perform specialty occupations using the E-3 visa. The E-3 visa is very similar to the H-1B visa. There is a limit of 10,500 visas per fiscal year.
  1. Trade NAFTA (TN). TN is available to Canadian and Mexican citizens to work temporarily in professional occupations.[3] The TN visa is a good alternative to the H-1B as there is no quota and no prevailing wage that needs to be paid.
  1. E-1 Treaty Trader and E-2 Treaty Investor.  The individual must be a citizen of a country which the United States has an E-1/E-2 treaty with.

In order to qualify for an E-1 treaty trader, an individual must demonstrate that a treaty exist; that the individual and business has the nationality of the treaty country; there is a substantial trade between the treaty country and the United States; if the individual is an employee, that individual must be an executive or in a supervisory position or possess essential skills to the company’s operation in the United States.

In order to qualify for an E-2 treaty investor, the individual must demonstrate that a treaty exist; the individual and business possess the nationality of the treaty country; the applicant has invested or is in the process of making a substantial investment in a business that is real and operating , the investment is more than marginal, and the individual is in a position to develop and direct the enterprise. If the individual is an employee, the employee must be an executive/supervisory position or possesses essential skills to the company’s operations in the United States

  1. L-1 Intracompany Transferee. Available to individuals who is offered a position by a U.S. parent, subsidiary, affiliate or branch office of a foreign company where the individual worked in a managerial/executive capacity or specialized knowledge position for a minimum for a minimum of one year within the three years preceding the individual’s application for admission to the USA.
  1. O-1 Alien of Extraordinary Ability. An individual must have extraordinary ability in the arts, sciences, education, business, or athletics. It must be demonstrated that this individual is one of the small percentage who have risen to the very top of the field of endeavor and has received sustained national or international acclaim in the field.

In addition to the above non-immigrant visas, there are also immigrant visas immediately available to Executives, Individuals with Extraordinary Abilities, Advanced Degrees with National Interest Waiver[4] .

[1] Please note the following is a list of the most popular alternatives to the H-1B visa and is not a comprehensive list.

[2] A complete list of eligible degrees can be found on www.ice.gov/sevis/stemlist.htm

[3] A complete list of professional occupations can be found in Appendix 1603.D.1. to NAFTA

[4] Please note that there are presently no available greencards for citizens of China and India.