The H-1B program allows employers to hire noncitizens as workers in specialty occupations. A specialty occupation is one that requires a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum qualification for the position. There is an annual cap on the number of H-1B visas that may be issued. Demand for H-1B visas exceeds the number of visas available. As such,  prospective employers  must complete and submit an electronic registration using the online H-1B registration system. At the closing of the registration period, USCIS randomly selects H-1B registrations for further processing. 

The H-1B registration for FY2023 has come and gone. If your H-1B registration was not selected for further processing, you may be wondering about viable alternatives. Depending on your circumstances, you may be eligible for one of the following employment-based visas:

H-2B Visa: Temporary Non-Agricultural Workers

The H-2B program permits employers to temporarily hire noncitizens from certain countries to perform nonagricultural labor or services in the United States. The employment must be temporary and for a limited period of time such as a one-time occurrence, seasonal, or intermittent need. The maximum period of stay in H-2B classification is 3 years. 

Traditionally, H-2B visas have been the “go to” visa option for employers seeking to hire noncitizens to fill non-professional or non-degreed positions. However, the H-2B visa can be used for any type of employment so long as the position does not involve agricultural labor or services. This means an employer can use the H-2B visa program to fill what would typically be considered a speciality occupation. 

There is an annual cap of 66,000 H-2B visas per a fiscal year; however, the cap is divided into two with 33,000 being issued for workers who begin employment in the first half of the fiscal year (Oct. 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30). A recent announcement revealed that 35,000 additional H-2B visas will be available for the second half of 2022. 

An H-2B worker’s spouse and unmarried children may seek admission in H4 status.

E-1 Visa: Treaty Traders

The E-1 visa allows a national of a treaty country to be admitted to the U.S. to engage in international trade. The treaty trader must carry on substantial trade between the treaty country and the U.S. The E-1 visa grants a stay of up to two years and may be followed by additional extensions in increments of up to two years. There is no limit on the number of extensions available.

Certain employees of such a treaty trader or of a qualifying organization may also be eligible for this classification. You may be eligible for an E-1 visa as an employee if:

• You have the same nationality of the treaty trader employer;
• You meet the definition of “employee” under relevant law; and
• You will either be engaging in executive or supervisory duties or have special qualifications that make your services essential to the efficient operations of the company.

Treaty traders and employees may be accompanied or followed by spouses and children under 21 years of age.

E-2 Visa: Treaty Investors

The E-2 visa allows a noncitizen, who is a national of a treaty country, to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. To be eligible for an E-2 visa, you must meet ALL of the following:

• Have invested, or be in the process of investing, a “substantial amount of capital” in the U.S. This investment can be in an existing business or startup. There is no minimum investment amount required, but the investment must be proportionate to the type of business and its goals.
• Own at least 50% of the enterprise or be able to otherwise show operational control over the enterprise.
• You or the enterprise must be building and directing business that will generate more income than is needed to support yourself and your family while in the U.S. within 5 years of admission.  

Upon entry on an E-2 visa, investors are allowed a maximum stay of two years. Extensions in increments of up to two years may be requested. There is no limit on the number of extensions available.

Certain employees of such a person or of a qualifying organization may also be eligible for this classification. You may be eligible E-2 visa as an employee if:

• You have the same nationality of at least 50% of your employer’s owners;;
• You meet the definition of “employee” under relevant law; and
• You will either be engaging in executive or supervisory duties or have special qualifications that make your services essential to the efficient operations of the company.

Treaty investors and employees may be accompanied or followed by spouses and unmarried children under 21 years of age.

E-3 Visa: Specialty Occupation Workers from Australia

The E-3 visa is available only to nationals of Australia. To be eligible for an E-3 visa, an individual must have a legitimate offer of employment in the U.S., possess the necessary academic or other qualifying credentials, and must fill a position that qualifies as a specialty occupation. To be considered a specialty occupation, the occupation must require theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent. Specialty occupations include, but are not limited to: lawyers, accountants, doctors, teachers, pharmacists, social workers, engineers, and architects. 

E-3 workers may be admitted initially for a period of up to 2 years and extensions may be granted indefinitely in increments of up to 2 years.

An E-3 worker’s spouse and unmarried children under 21 are entitled to E-3 classification.

O Visa: Individuals with Extraordinary Ability or Achievement

The O-1 visa is available to individuals with extraordinary ability in the sciences, education, business, athletics or arts, or extraordinary achievement in the motion picture or television industry. You must demonstrate that you have been recognized nationally or internationally for your achievements. O-1 visas may be valid for an initial period of three years and may be extended indefinitely in one-year increments.

You may be eligible for an O-1A visa if you can establish extraordinary ability in the sciences, education, business, or athletics. To demonstrate extraordinary ability in your field, you must have received a major, internationally-recognized award like a Nobel Prize. However, even if you have yet to receive a Nobel Prize, you can still qualify for an O-1A visa if you can meet at least 3 of the following criteria:

• You have received a nationally or internationally recognized prize or award for excellence in your field;
• You are a member of an association for which outstanding achievement in your field is required for membership, as judged by recognized experts in the field;
• Material has been published in professional or major trade publications or major media about you, relating to your work in the field;
• You have participated on a panel, or individually, where you judged the work of others in the same or an allied field;
• You have made original scientific, scholarly, or business-related contributions of major significance to your field;
• You have written scholarly articles in the field for professional journals or other major media;
• You have worked in a critical or essential capacity for organizations with distinguished reputations; or
• You have commanded a high salary or will command a high salary or other remuneration for your services.

You may be eligible for an O-1B visa if you can establish extraordinary ability in the arts or have a record of extraordinary achievement in the television or motion picture industries. To demonstrate extraordinary ability in the arts or extraordinary achievement in the television or motion picture industry, you must have received, or been nominated for, a significant national or international award or prize in the particular field, such as an Oscar, Emmy, Grammy, or Director’s Guild Award. However, even if you have yet to receive a Oscar, Emmy, Grammy, or Director’s Guild Award, you can still qualify for an O-1B visa if you can meet at least 3 of the following criteria:

• You have performed and will perform services as a lead or starring participant in distinguished productions or events;
• You have achieved national or international recognition for your achievements;
• You have performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputations;
• You have demonstrated a record of major commercial or critically acclaimed successes;
• You have received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in your field; and
• You have commanded a high salary or will command a high salary or other substantial remuneration for your services in relation to others in your field.

Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance are eligible for O-2 visas.

Spouses and children of O-1 visa holders are eligible for O-3 visas.

TN NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the U.S., Mexico, and Canada. NAFTA was amended under President Trump and renamed the United States Mexico Canada Agreement (USMCA). NAFTA and the USMCA allow qualified citizens of Canada and Mexico to seek temporary entry into the U.S. to engage in business activities for an initial period of up to 3 years under the TN visa.

Among the types of professionals eligible for TN visas are accountants, engineers, lawyers, pharmacists, scientists, and teachers. A full list of eligible professions can be found here. 

Mexican citizens must apply for a TN visa at a U.S. Embassy or Consulate in Mexico. Canadian citizens do not need to apply for a TN visa at a U.S. Embassy or Consulate, but may present required documentation to a U.S. Customs and Border Protection officer at a designated port of entry.

Spouses and dependents of Mexican citizens must apply for a TD visa at an American Embassy or Consulate. Spouses and dependents of Canadian citizens may apply for admission at a designated port of entry.

Not sure which alternative is right for you? Still have questions about alternatives to the H-1B visa? Our team of experienced attorneys is happy to help.