H-1B Visa Alternatives

Categories: Immigration Lawyer Blog San Diego

Didn’t get selected in the H-1b lottery? Missed the H-1b filing deadline? Wondering what to do now? Here are some possible options that could work for you:

  • O-1 Visa: The O-1 visa is for foreign nationals of extraordinary ability in the sciences, arts, or business. The standard is generally quite high as the individual must have “sustained national or international acclaim”, but this standard is lowered for individuals in the arts. The O-1 visa is not subject to a specific numerical limitation. The O-1 visa is similar to the EB-1 extraordinary ability category.
  • E-3 visa: The E-3 visa is similar to an H-1b visa, but unfortunately only Australian nationals are eligible for E-3 visas. The E-3 visa also requires a Bachelor’s degree or the equivalent. There is an annual quota of 10,500 E-3 visas, but this cap has never been met. Applicants for the E-3 visa may apply directly at the consulate without going through USCIS.
  • L-1: The L visa is for an intra-company transfer. There must be a qualifying relationship between the overseas company and the U.S. entity. This can be through a parent/subsidiary relationship, a branch office, or an affiliate. There are two sub categories of L-1 visas
    • L-1A: The L-1A visa is for multinational managers or executives.
    • L-1B: This visa is for specialized knowledge. This is a stringent standard and a company must show the workers knowledge is specialized and critical to the company.
  • J-1 Visa: The J-1 visa is a diverse visa, but is typically for interns and trainees.  For a company that has a legitimate training plan this visa could work.
  • E-2 investor visa: The E-2 visa could work for someone who decides they would rather start their own company, or acquire a substantial ownership in an existing company. Unfortunately, E-2 visas are only available if there is a qualifying treaty between the two countries. Most notably there is no E-2 visa for China or India (but there is for Iran – go figure). Here is the complete list of treaty countries.
  • Apply directly for a Green Card. Some people if they are eligible for a National Interest Waiver, or a Schedule A Physical Therapist, can file the I-140 and I-485 at the same time (excluding those from India or China). Others will have to go through the lengthy labor certification to show that there is not a US worker willing, qualified, and able to do the job. Nevertheless, individuals that qualify for the EB-2 category (the position requires a Master’s degree or a Bachelor’s + 5 years of experience) will typically obtain a work permit in 8-10 months and a green card shortly thereafter (longer if the labor certification gets audited). The priority dates for the EB-2 category for people from India or China are significantly backed up, and applicants from either of these countries will have to wait several years before they may file the final stage paperwork and obtain a work permit.
  • If none of these options will work, one can always wait until next year and reapply for an H-1B visa in 2014. Hopefully, Congress will push through immigration reform by then and allocate more visas.

Have questions about any of these visas? Feel free to contact an immigration attorney for a consultation about your personal situation.