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H-1B Lottery Alternatives

By Robyn Gao on May 5, 2023


As the H-1B lottery results have concluded for Fiscal Year 2024, the USCIS recently announced that they received a total of 780,994 H-1B registrations for the FY 2024 season. Among all registrations, the number of H-1B applicants with only one registration is approximately 350K, and approximately 410K have entered multiple registrations. USCIS announced that they selected 110,791 H1B registrations from the total pool to reach the H-1B cap of 85,000, which means only about 14% registrations were selected.


With such a high number of unselected employees, we want to use this article to provide a few other options as an alternative to the Cap-subject H-1B lottery.


Country-Specific Visas

There are various types of country-specific visas available to applicants that hold a citizenship of qualified countries. Citizens of Canada and Mexico can apply for a TN visa, if they are employed in the U.S. in a list of designated occupations. Citizens of Singapore and Chile can apply for an H1B1 work visa without going through the lottery system, while Australian citizens can apply for an E-3 visa. These work visas are reserved for the specific countries, and applicants who qualify can apply anytime throughout the calendar year.


It’s important to note that, unlike the Green Card priority date, which looks at the applicant’s country of birth, these country-specific visas are available for any qualified individuals that currently hold the citizenship of the country.


E-1/E-2 Treaty Country Visas

The E-1 or E-2 visas are another option for citizens of the treaty countries. An E-1 visa is available to citizens of treaty countries such as Mexico, Germany, Italy, Thailand, UK, Japan, etc. to engage in substantial trade between the U.S. and their home country. This is available for individuals who either work for a company that engages in substantial trade between the U.S. and home country, or who owns and operates their own business engaged in such trade.


The E-2 visa is another non-immigrant visa that allows individuals from certain treaty countries to invest in and manage for-profit enterprises in the U.S. To apply for an E-2 visa, the applicant must be a citizen of a treaty country, have invested, or is in the process of investing a substantial amount of capital into the establishment or operation of a U.S. enterprise. Mexico, Japan, Taiwan, Turkey, France, Canada, UK, Thailand, etc., are all part of the E-2 treaty.


H-1B Cap-exempt

If the applicant works for a cap-exempt employer, they can opt from the H-1B lottery and apply for the H-1B visa at any time. However, the USCIS will analyze the employer’s eligibility closely, a cap-exempt employer must meet one of these criterias:

  • be an institution of higher education, or a related or affiliated nonprofit entity; or

  • be a “nonprofit research organization or governmental research organization”

The eligibility criteria and evidence required to prove the employer’s H-1B cap-exempt status can vary depending on the employer and the position itself, but in general, other H-1B requirements still apply, such as the prevailing wage requirements, specialty occupation requirements, and educational requirements.

L-1 Intracompany Transfer

The L-1 visa is available if the U.S. employer wants to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.


The L-1 applicant should have been working for a qualifying employer abroad for at least one continuous year within the three years immediately before the admission to the U.S.; and is being transferred to the U.S. office to work in a managerial, executive, or specialized knowledge role.


O-1 Extraordinary Ability

O-1 visas might be available for an individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.


Many applicants working in the Arts, STEM, or Business field may qualify for the O-1 visa. Since extraordinary ability must be established, it’s important for the applicants to supplement the USCIS with sufficient evidence, including but not limited to work products, publications, media coverage, etc. One of the most attractive merits of an O-1 visa is it can be sponsored with or without an employer, offering the applicant more flexibility in work placement compared to an H-1B visa.


Our immigration attorneys at Anderson and Associates Law, P.C. will continue to monitor the latest trends and policy shifts in terms of H-1B and other work visas. Please feel free to reach out to us if you have any questions or needs. We are happy to talk to you and offer solutions to your immigration needs.


Disclaimer:

This article contains information on legal issues and is not a substitute for legal advice from a

qualified attorney licensed in the appropriate jurisdiction.

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