Many employers and foreign nationals seeking an H1B visa will be disappointed because the demand exceeds the number of visas available. This visa is a popular way to obtain employment in the United States, and USCIS has a strict limit for how many they can issue per year. 

Thankfully, there are plenty of alternatives to the H1B visa that may be a better fit for your situation. Here’s what to consider before you apply for a work visa.

What Is the H1B Visa?

The H1B visa is a non-immigrant visa that allows foreign nationals to bring their specialized skills to the United States workforce for a temporary period of time. The H1B visa is only available to applicants with a bachelor’s degree (or a foreign equivalent) or higher. Not only do you have to possess a bachelor’s degree (or a foreign equivalent) or higher, the job must require such a degree.

Who Is Eligible for the H1B Visa?

The H1B working visa can be awarded to individuals with at least a four-year degree. Some popular fields are:

• Medical professionals
• Architects
• Engineers 
• Scientists 
• Legal professionals
• Accountants
• Theologists
• Mathematicians
• Specialty roles within a company

You must have proof of your credentials to be eligible for an H1B visa. USCIS recognizes that accredited educational institutions have different standards and programs around the world. As long as you completed your education at an accredited institution and it could be considered the equivalent of a United States bachelor’s degree or higher, your educational credentials are acceptable. 

You must also have a valid job offer from a United States employer. You can’t come to the United States to seek qualified work. The position must already be available and waiting for you in the United States before you arrive. 

What Happens If You’re Not Chosen for the H1B Visa?

There is a finite number of H1B visas issued every year. Currently, 65,000 H1B visas can be issued; there are an additional 20,000 H1B visas for individuals who earned a U.S. master’s degree or higher. These spots fill up quickly due to the visa’s popularity. 

Applicants who aren’t selected in the first round may be selected at a later date by becoming a part of the automatic waitlist or being selected through the second chance lottery.

Automatic Waitlist

Some H1B visa cases may be placed on a waitlist after it appears that all prospective visa spots have been filled. In the event that another applicant’s plans change or their case falls through, USCIS may contact you regarding unexpected availability. The waitlist is used to fill spots for the second chance lottery in the event that a large number of applicants don’t make it through the H1B visa process.

Second Chance Lottery

If USCIS rejects a significant amount of registrations, they will select a second round of applicants. This is called the second chance lottery. The second chance lottery is different from the Diversity Visa Lottery, which pulls from a separate group of occupants.

It’s rare to be selected as a second chance lottery recipient because most people who apply for an H1B visa work hard to meet the criteria and satisfy USCIS. You shouldn’t count on becoming a second-chance lottery recipient, but it may be a pleasant surprise.

What Are Alternatives to the H1B Visa?

If you aren’t chosen for the H1B visa, you may have other options. These may be worth considering these options first, depending on your situation. 

Before you apply for a visa to work in the United States, consider all options available to you and find the best fit. Country-specific visas may be a better idea for applicants living in Canada, Mexico, Singapore, Chile, or Australia. Students may not need an H1B visa if their purpose when working in the United States is to fulfill education requirements outside of the classroom or seek practical experience in their field.

There are several alternatives to the HB1 visa. The HB1 visa can be a gamble. Alternatives may increase your chances of successfully obtaining a work-related visa to enter the United States.

Cap-Exempt H1B Visas

USCIS places a cap on the number of H1B visas they can issue each fiscal year. The cap for applicants with a bachelor’s degree (or equivalent) is 65,000 visas per year. There is an exception to the cap for applicants with higher-level degrees. 

USCIS sets aside an additional 20,000 visas for applicants with a master’s degree (or equivalent) or higher. If this applies to you, you have a greater chance of successfully obtaining an H1B visa.

Some types of employers are considered cap-exempt. Qualified educational institutions, non-profit organizations affiliated with educational institutions, non-profit research organizations, and government-related non-profit organizations are allowed to request H1B visas for prospective employees outside of the normal cap. Their requests to hire skilled foreign workers are treated differently. 

O1 or P1 Extraordinary Ability Visas

O1 and P1 extraordinary ability visas are used by those who have extraordinary ability in the sciences, education, business, or athletics, as well as actors, directors, producers, and musicians from other countries. If a celebrity or public figure from another country needs to spend an extended amount of time working in the United States, they may be granted an O1 or P1 visa for the duration of their stay. 

Please note extraordinary ability visas are only granted to those who are internationally recognized in the arts sciences, education, business, athletics, or motion picture/television industry. They can’t be used for prospective or aspiring performers seeking success in the United States. 

L1 Intracompany Transferee Visas

L1 intracompany transferee visas allow multinational companies to move key employees from outside of the United States into the United States to assume a role in the U.S. or receive promotions. If you’re eligible for this visa, most of the paperwork and arrangements will be made by your employer. You don’t have to apply for an H1B visa or another type of work visa if you’re staying within the same career track under the same employer.

Country-Specific Visas

The United States sets aside a certain number of visas for workers from specific countries. The H1B visa is available to people from many countries, which is partially why spots fill up as soon as they become available. By choosing a country-specific visa like the ones below, you’re reducing competition:

• TN for Canadian and Mexican Professional Workers.
• H1B1 for nationals of Chile and Singapore coming to fill specialty occupations.
• E3 for speciality occupation workers from Australians.

The TN visa, also called the United States-Mexico-Canada Agreement (USMCA) or NAFTA Professional Visa, allows professionals who work in specific fields to obtain employment within the United States. Citizens of Canada or Mexico who meet H1B qualifications for jobs in specific USMCA-recognized fields can apply for the TN visa instead. 

The TN visa doesn’t have a cap. USCIS will accept any number of North Americans who fit the criteria and have a position waiting for them in the United States. 

The H1B1 visa is exactly the same as the H1B visa in all ways except for country specificity. H1B1 is only available to nationals of Singapore and Chile. USCIS will accept up to 5,400 eligible Singaporeans and 1,400 Chileans per year. If your country of origin is Singapore or Chile, you’re better off applying for an H1B1 visa.

The E3 visa is very similar to the USMCA visa program. The United States-Mexico-Canada Agreement applies to Canada, the United States, and Mexico. Similarly, AUFTA, or the Australia-United States Free Trade Agreement, applies to the United States and Australia. The E3 visa has a 10,500-cap work visa specifically for citizens of Australia.

E1/E2 Treaty Trader or Investor

The E1 and E2 visas are available to nationals of countries where the United States maintains some sort of trade treaty. These visas allow traders or investors to visit and work in the United States as part of a major business deal that benefits international trade in some way. 

E1 and E2 visas can only be awarded to people on official business that would be recognized as an act of international trade or investment. 

F1 OPT Extension or F1 CPT

F1 OPT (optional practical training) Extension and F1 CPT (curricular practical training) are for students in the United States. Some students will require on-the-job training (like medical residency or additional scientific certifications) to complete their degree or obtain proper certifications to be able to work in their field. 

These visa extensions allow students to work in the United States if their work is a continuation of their education. They can be used for both mandatory on-the-job training and optional additional certifications that may make it easier for graduates to find a position in their chosen field.

File for Permanent Residency Directly

If you are already living and working in the United States, you may be eligible to file for permanent residency directly. However, these situations are uncommon. Almost all situations where people can directly file for permanent residency will require the applicant to have a valid immigrant visa, but there may be some exceptions.

Ask your employer if they have any options that may be available to you. You can also directly file for permanent residency if you are married to a United States citizen. 

When Can You File a New H1B Petition?

An employer can file a new H1B registration on your behalf every year. USCIS posts the dates when they’ll start accepting H1B petitions. 

If your H1B registration didn’t make it through before the cap, you’ll want to pay close attention to the new acceptance date. Preparing your paperwork ahead of time makes it easy to submit the moment USCIS starts accepting registrations.

Keep in mind that applying as early as possible still doesn’t guarantee that you’ll be granted an H1B visa. The H1B visa has very broad requirements, which is why so many people apply for it. If there is another visa that works for your unique skill set or qualifications, consider pursuing that visa instead. The more specific the qualifications are, the less competition you’ll encounter

How Can a Skilled Lawyer Help?

USCIS is trying its best to keep up with new applications, but they’re always handling a significant amount of cases. The H1B visa is highly sought after, and the cap isn’t high enough to give every applicant an opportunity to live and work in the United States. Before you apply, you need to be sure that H1B is the only option for you. You don’t want to miss out on a better visa opportunity with better odds of approval. 

A skilled lawyer will be able to review the details of your case and suggest relevant visas for your needs and qualifications. If there’s a better way than applying for an H1B visa and hoping that things work out, a competent immigration attorney will be able to point you in the right direction. 

The knowledgeable legal team at Cohen, Tucker + Ades has been helping people work (and live) in the United States for over 40 years. Contact us for a consultation on your case. We’ll review your situation, explain your options, and work to find the best visa solution for you. 

Sources:

How Bachelor’s Degrees in the U.S. and Europe Differ | U.S. News and World Report

Green Card Through the Diversity Immigrant Visa Program | USCIS

NAFTA Professional List | Suny RF | The Research Foundation for the State University of New York

1 – Australia–United States Free Trade Agreement | Cambridge University Press