Alternative Visa Options If You Were Not Selected in the H-1B Cap Lottery

In this video, attorney Jacob Sapochnick discusses the top work visa alternatives to the H-1B visa for those who were not selected in the H-1B lottery for the FY 2025 cap season.

To learn more, please keep on watching this video.

Overview

As our readers may know, the electronic registration process for the H-1B work visa occurs every year during the month of March. During this period, U.S. employers petitioning for foreign workers must submit an electronic registration on behalf of each employee for a chance to be selected in the H-1B visa lottery.

Once the electronic registration period has closed, the H-1B lottery is conducted to select enough beneficiaries to participle in the program. Unfortunately, competition for the H-1B visa is fierce because only 65,000 H-1B visas are available each fiscal year, and another 20,000 are available for foreign workers possessing a U.S. master’s degree or higher.

Due to these numerical limits, the demand for H-1B visas far outweighs available visas, causing many to miss out on the visa.

As a result, U.S. employers and their workers should be familiar with alternative work visa options to provide relief in cases where they were not selected.

The H-1B Work Visa Alternatives

The O-1A Visa

The O-1A Visa is a nonimmigrant visa for individuals who have demonstrated extraordinary ability in fields such as the sciences, education, business, and athletics. It allows individuals with exceptional talents to work in the United States, if they can prove sustained national or international acclaim in their domain. It also enables their family members to accompany them to the United States on O-3 visas.

O-1 applicants must be petitioned for the visa directly by their employers or agents (employers are U.S. companies that direct the work the beneficiary will undertake in the U.S., while agents are individuals or entities acting on behalf of multiple employers). The employer or agent must provide an employment contract or agreement detailing the job offer, the applicant’s roles and responsibilities while in the United States, etc.

To qualify for the O-1A visa, the worker must provide evidence that they have received a major internationally recognized award (such as the Nobel Prize, Grammy, Oscar, etc.), or if they have not received such an award, they can still qualify by providing at least three of the following forms of evidence:

Evidence of Awards and Honors: Other internationally recognized or nationally recognized awards in your field.
Membership in Associations: Documentation of your membership in associations that require outstanding achievements as a criterion for membership.
Published Material About Your Work: Articles, reviews, and other media coverage demonstrating your achievements and acclaim in your field.
Original Contributions: Proof of significant original contributions of major significance in your field, such as patents, scholarly publications, or innovations.
Authorship of Scholarly Articles: Articles you have written that have been published in major media or professional journals.
Evidence of Critical Employment: Contracts or proof of a leading or critical role for distinguished organizations or establishments.
High Salary or Remuneration: Evidence that you command or will command a high salary or other remuneration for your services compared to others in your field.
Judging the Work of Others: Documentation showing you have judged the work of others in your field, either individually or on a panel.

This is the perfect option for graduates in the STEM fields who are working in critical and emerging technologies, and who have achieved success in their field.

The E-2 Visa

The E-2 treaty investor visa is a nonimmigrant visa type that allows individuals from certain countries to live and work in the United States based on their qualifying investment in a U.S. business. To be eligible for the E-2 visa, you must be a citizen of a country that has a treaty of commerce, navigation, or an international agreement with the United States.

To know if your country maintains such a treaty with the United States, please click here for the U.S. Department of State’s list of qualifying countries.

If your country of nationality does not have such a treaty with the United States, you do not qualify for the E-2 visa.

To apply for the E-2 visa, you must meet the following general requirements:

Be a national of a country that maintains a treaty of commerce and navigation with the United States.
You must have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States, and
You must be seeking to enter the United States solely to develop and direct the business in which you have made your investment. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

This visa is most suitable for startup founders and entrepreneurs who want to invest in and manage their own businesses in the United States. Typically, technology workers who were not selected in the H-1B visa lottery, who possess a unique level of skill in their field opt to launch their own consulting businesses.

E-2 applicants are required to invest a “substantial” amount of money into their U.S. businesses. The law does not specify a specific amount, but the amount invested must be “substantial” in relation to the total cost of establishing a new business, or in relation to the total purchase price of an existing business.

Other factors that determine “substantiality” are whether the investment is sufficient to operate the business and ensure its successful development overtime.

Investors must demonstrate that the funds they will invest originate from a lawful source. This is done by providing complete documentation of the source of the investment funds. Additionally, investors must show that the investment funds have been irrevocably committed to the business entity through business expenditures (payment of rent for the business premises, start-up/operational costs, employee payroll, etc.).

The TN Visa

Another great option specifically for Canadian and Mexican nationals is the TN visa for professionals.

The TN visa is a nonimmigrant visa that allows citizens of Canada and Mexico to work in the United States for a three-year period, subject to additional extensions.

To apply for a TN visa, you must meet the following requirements:

You must be a citizen of Canada or Mexico
Your profession must be listed on the USMCA list
Your position in the United States must require a USMCA professional
You must work in a prearranged full-time or part-time job for a U.S. employer (see Required Documentation). Self-employment is not permitted
You must have the appropriate credentials and qualifications for the profession, including educational requirements or experience

With some exceptions, the TN visa requires a baccalaureate (bachelor’s) degree as an entry-level requirement. If a baccalaureate is required, experience cannot be substituted for that degree. In some professions, an alternative to a bachelor’s degree may be acceptable.

For a complete list of professions with minimum education requirements and alternative credentials, see Appendix 1603.D.1 of USMCA Chapter 16.

The documentation required to apply for a TN visa is generally as follows:

Proof of Canadian or Mexican citizenship (usually a valid passport)
TN Support letter (also called TN Employment letter) provided by the U.S. employer.
The Employment Contract
Work Experience Letter
Employer’s materials regarding the Company’s business
Proof of your educational and professional qualifications for the position
Proof of paying the application fee
Proof of the applicant’s strong ties to his or her country of origin

The application procedure for the TN visa will depend on your country of nationality.

Mexican TN applicants must complete the DS-160 online nonimmigrant visa application, pay the correct visa application fee, and schedule a visa interview at a U.S. Consulate or Embassy in Mexico, bringing their supporting documentation to the interview.

Canadian nationals can apply for the TN visa at a U.S. Port of Entry when entering the United States by simply presenting their documents to U.S. Customs and Border Protection (CBP) officers. Such individuals can enter the U.S. and work on the very same day they are approved.

The major advantage of the TN visa is that it is a very simple and straightforward application process compared to the H-1B visa. Additionally, applicants can receive their visa relatively quickly, especially for Canadians who apply at the border.

The L-1 Visa

Yet another option is the L-1 nonimmigrant visa classification. This visa allows U.S. employers to transfer an executive, manager, or a professional employee with specialized knowledge from one of its affiliated foreign offices to one of its offices in the United States.

It also allows a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States for the purpose of establishing one.

To qualify for L-1 classification in this category, the employer must:

Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations) and
Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.

To employee must also:

Generally, have been working for a qualifying organization abroad for one continuous year within the three years preceding his or her admission to the United States and
Be seeking to enter the United States to provide service in an executive, managerial, or in a specialized knowledge capacity for a branch of the same employer or one of its qualifying organizations.

The J-1 Trainee Visa

The J-1 visa is for exchange visitors who will participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training in the U.S.

J-1 visa applicants must be sponsored by an exchange program that is designated by the U.S. Department of State.

In January 2022, DOS announced measures to increase the flow of talent specifically in the science, technology, engineering, and math (STEM) fields, making this a great option for STEM graduates and tech workers who want to receive further training in the United States.

The Early Career STEM Research Initiative connects certain J-1 program sponsors with STEM-relevant sponsors, including businesses.

Examples of J-1 exchange visitors who can participate include:

Professors or scholars
Research assistants
Students
Trainees

STEM Optional Practical Training (OPT) Extension

If you have earned a degree in certain science, technology, engineering and math (STEM) fields in the U.S. as an F-1 international student, you may apply for a 24-month extension of your post-completion OPT employment authorization if you:

Are an F-1 student who received a STEM degree included on the STEM Designated Degree Program List (PDF)
Are employed by an employer who is enrolled in and is using E-Verify and
Received an initial grant of post-completion OPT employment authorization based on your STEM degree

To qualify for the 24-month extension, you must:

Have been granted OPT and currently be in a valid period of post-completion OPT
Have earned a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education-recognized accrediting agency and is certified by the Student and Exchange Visitor Program (SEVP) at the time you submit your STEM OPT extension application
Work for an employer who meets all the requirements listed below in the STEM OPT Employer Responsibilities section
Submit the Form I-765, Application for Employment Authorization, up to 90 days before your current OPT employment authorization expires, and within 60 days of the date your designated school official (DSO) enters the recommendation for OPT into your Student and Exchange Visitor Information System (SEVIS) record

Conclusion

These are the most common alternatives to the H-1B visa, however there are many other options that could work for you based on your academic background and experience. To know whether you qualify for these and any other options, we invite you to contact us for a consultation.

Contact Us. If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

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