Founder of Alcorn Immigration Law, Sophie Alcorn, helps tech and entrepreneurial talent navigate U.S. immigration for visas and green cards.
H-1B visas allow foreign workers to live and work in the United States while performing services in specialty occupations as defined in the H-1B’s eligibility requirements.
However, U.S. Citizenship and Immigration Services (USCIS) received over 479,000 registrations for the 85,000 H-1B visas last fiscal year alone. Limitations due to the H-1B visa cap, limited job mobility and high competition among some of the largest employers in the United States are just some of the reasons it may be wise to consider alternatives early.
Below are the alternatives I recommend exploring:
Cap-Exempt H-1B Options
Certain workers may be exempt from the H-1B cap or lottery. These include those employed at universities, nonprofit organizations and research organizations. Employers for these roles can petition for H-1Bs at any time of year, regardless of whether the annual cap has been reached.
I see more and more organizations qualifying for this option. Moreover, a part-time H-1B that is cap-subject can be paired with a part-time or full-time concurrent H-1B at a traditionally cap-subject employer. This is a key option to consider, as it creates more opportunities to retain international talent that can drive advancements in research and technology.
O-1A Visa For Individuals With Extraordinary Ability
The O-1A visa is available for those with documented “extraordinary ability” in business, education, science or sports sectors. Applicants will need to provide significant evidence. Examples include:
• Being a member of a prestigious association in your field.
• Having received a major award in your field.
• Having had major media coverage for your work.
I’ve observed a significant increase in O-1A applications from STEM professionals in science and technology thanks to updated immigration policies that emphasize national interest. Given current trends and the increasing demand for technological advancements from a national security perspective, this trend is likely to accelerate in the near future.
L-1 Intracompany Transferee Visa
An L-1 visa is an option for foreign workers of a U.S. employer to transfer from a foreign office to work for one in the United States. Two main options exist:
1. L-1A Visa: Available to managers and executives.
2. L-1B Visa: Available to employees with specialized knowledge.
The USCIS’s general eligibility for L-1 visas is:
• The noncitizen must be employed abroad for at least one year out of the last three years prior to application.
• This must have been in a position requiring specialized knowledge or an executive or managerial role.
• The noncitizen must enter the U.S. to render services in an executive, managerial or specialized knowledge capacity.
An employer must petition on the applicant’s behalf, and there are no degree requirements or annual caps to worry about.
Country-Specific Options
The U.S. immigration system also offers country-specific visa options, such as:
TN Visa For Canadian And Mexican Professionals
TN visas are nonimmigrant visas available to workers from Canada and Mexico and are outlined in the United States-Mexico-Canada Agreement (USMCA), formerly known as NAFTA. TN visas offer a three-year initial period of stay for temporary workers in eligible occupations, such as accountants, engineers, scientists and teachers.
In addition to meeting the regulatory requirements for the position, you must also have a job offer from a U.S. employer (part-time or full-time) and meet the necessary professional qualifications.
Canadian citizens must show proof of citizenship, a letter from the prospective employer and approval under Form I-129. Mexican citizens must apply through a consulate or embassy in Mexico.
E-3 Visa For Australian Professionals
H-1B and E-3 visas are similar in that they require the applicant to be in a specialty occupation and have a U.S. employer sponsor them. However, caps and quotas for E-3 visas are much lower—only 10,500 applicants are approved annually.
E-1/E-2 Treaty Trader/Investor Visas
The E-1 and E-2 visa programs are available to eligible individuals in certain nations who meet certain requirements relating to trade or investment activities.
The list of eligible countries includes those as diverse as Albania to Togo, but a complete list of treaty countries can be found on the website of the Bureau of Consular Affairs.
Strategic business models to consider include franchises, service-based businesses, healthcare services and relevant hospitality businesses.
Permanent Residence Alternatives
The H-1B visa is just one option for temporary residence in the United States. However, an H-1B is not required for a green card. There are many pathways to permanent residence, which include:
EB-1A Extraordinary Ability
The purpose of the EB-1A first-preference green card category is to establish permanent residency for individuals of extraordinary ability, outstanding researchers or certain multinational executives or managers.
To qualify for this employment-based immigrant visa, you must have evidence of your extraordinary ability, which can include (but is not limited to) major prizes or awards, published material or scholarly contributions. A previous article of mine discussed applying for the EB-1A green card versus the O-1A visa.
Overall, if you are an entrepreneur, I think the O-1 visa is a great option if you’re looking for temporary status and faster processing, especially if you’re testing the waters in the U.S. But if you are planning for the long haul and want permanent residency (and a path to U.S. citizenship), the EB-1A green card may be a better choice.
EB-2 National Interest Waiver (NIW)
A National Interest Waiver allows individuals of exceptional ability to request a waiver of labor certification requirements. Applicants must be able to show that:
• Their proposed endeavor is of national importance.
• It is in the best interest of the nation to waive job offer and PERM certification requirements.
Obtaining an NIW can be complex, but an experienced immigration attorney can help you navigate each step.
Alternative Pathways To Work In The United States
The H-1B visa program is one of the most competitive in the U.S. Preparing for multiple options can significantly improve your chances, but it’s important to stay informed about policy changes and adapt your strategy as necessary.
Consider consulting with an immigration attorney to understand your options and determine the best course of action.
Forbes Business Council is the foremost growth and networking organization for business owners and leaders. Do I qualify?
Read the full article here
