visa alternatives to H1B classification
In recent years, every year the demand for H-1Bs has exceeded the supply. In 2015, the H-1B cap was reached within a week of when the filing window opened. Until Congress increases the H-1B cap, employers and employees who are not cap-exempt will need to continue to seek alternatives to the H-1B. Details regarding many of these visa categories may be found by clicking here, however the following is a summary of some non-immigrant visas to the H-1B that may be considered:
B-1 in lieu of H-1B: This is not an ordinary B-1 – it can sometimes be used for employers with offices overseas where the employee works for one of those offices and is coming in for a short-term duration, qualifies for the H-1B otherwise, and will not receive compensation from a U.S. source.
E-1 or E-2: For employees from Treaty Investor or Trade visa countries, the E-1 or E-2 may be an option provided that the petitioning employer is at least 50% owned by a person, entity, or group of people or entities from the same Treaty Investor or Trade visa country that the beneficiary is from. For more information and a full list of eligible countries, please click here.
E-3: For Australian nationals only – the qualifications are similar to the H-1B.
H-3: This classification can be used for temporary training for beneficiaries who cannot receive the training in their home country.
J-1: If the employer offers a training program in which the prospective employee could enroll and he or she does not come from a country that would require a two-year home residency requirement, a J-1 may be possible.
L-1: If the U.S. employer has any offices outside of the United States to which it could employ the prospective beneficiary (or if the prospective beneficiary has been employed at a qualifying related entity to the U.S. employer located outside of the United States), the L-1 may be considered. Although one year of employment outside the U.S. out of the last three at a related qualifying entity is required for the regular L-1, if the petitioner is eligible for a blanket L-1, this time can be reduced to six months. For an overview of the L-1 classification, please click here.
O-1: If the prospective employee is in the very top of his or her field, an O-1 should be considered. More information on this category by clicking here.
TN (Trade NAFTA): This category is only available to Canadians and Mexicans. However, if the prospective employee is Canadian or Mexican and the position falls in one of the position categories listed, the TN classification may be possible. For more information regarding the TN category, please click here.
B-1 in lieu of H-1B: This is not an ordinary B-1 – it can sometimes be used for employers with offices overseas where the employee works for one of those offices and is coming in for a short-term duration, qualifies for the H-1B otherwise, and will not receive compensation from a U.S. source.
E-1 or E-2: For employees from Treaty Investor or Trade visa countries, the E-1 or E-2 may be an option provided that the petitioning employer is at least 50% owned by a person, entity, or group of people or entities from the same Treaty Investor or Trade visa country that the beneficiary is from. For more information and a full list of eligible countries, please click here.
E-3: For Australian nationals only – the qualifications are similar to the H-1B.
H-3: This classification can be used for temporary training for beneficiaries who cannot receive the training in their home country.
J-1: If the employer offers a training program in which the prospective employee could enroll and he or she does not come from a country that would require a two-year home residency requirement, a J-1 may be possible.
L-1: If the U.S. employer has any offices outside of the United States to which it could employ the prospective beneficiary (or if the prospective beneficiary has been employed at a qualifying related entity to the U.S. employer located outside of the United States), the L-1 may be considered. Although one year of employment outside the U.S. out of the last three at a related qualifying entity is required for the regular L-1, if the petitioner is eligible for a blanket L-1, this time can be reduced to six months. For an overview of the L-1 classification, please click here.
O-1: If the prospective employee is in the very top of his or her field, an O-1 should be considered. More information on this category by clicking here.
TN (Trade NAFTA): This category is only available to Canadians and Mexicans. However, if the prospective employee is Canadian or Mexican and the position falls in one of the position categories listed, the TN classification may be possible. For more information regarding the TN category, please click here.