Alternatives to H-1B visa

Last Updated on April 9, 2023 by Anda Malescu

The article discusses alternatives to H-1B visa for those of you who were not selected in the H-1B visa lottery, were laid off from your current H-1B job or you simply do not qualify for H-1B visa or want to change your job.  

There are 85,000 H-1B visas available to foreign nationals each fiscal year through a lottery process. Because there are more applicants than visas available each year, many foreign nationals are not selected in the lottery and need to find alternatives to H-1B visa if they want to work in the United States. However, not all H-1B visas are subject to the annual numerical limit or cap. To learn more visit our H-1B visa page.

You are not subject to the H-1B visa cap if you fall in one of the following cases:

1. Your US employer is cap-exempt and as a result not subject to the numerical limit. Employers who are cap-exempt can file an H-1B petition at any time and the H-1B visa is effective on approval. A cap-exempt employer is (a) a US institution of higher education such as a university, (b) a US nonprofit entity related or affiliated to a higher education institution, or (c) US nonprofit research organization or a governmental research organization.
2. You are a national of Chile or Singapore applying for H-1B1 program. 6,800 H-1B visas are set aside annually for workers from Child and Singapore applying for H-1B visa under the U.S.-Chile and U.S.-Singapore free trade agreements.
3. You are performing services or labor in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam and the US employers file the H-1B petition before Dec. 31, 2029.
4. You are an H-1B worker currently in the US and want to change jobs and transfer to another US employer.  
5. You are a former H-1B worker living outside the United States who has not exhausted the full 6 years.

Further, H-1B workers who have lost their jobs, have been laid off or terminated from their jobs have a 60-day grace period to find an alternative to H-1B visa or an alternative employer. Persons in H-1B classifications have either 60 days grace period or the remaining portion of their status as indicated on their I-94, whichever is shorter.

The bottom line is that during the H-1B grace period you need to find a new job and US employer willing to sponsor your H1B visa or find another alternative to H-1B visa.

Alternatives to H-1B visa

If you were not selected in the H-1B visa lottery or you were laid off from your current H-1B job, here are the alternatives to H-1B visa to explore:

1. Cap-exempt H-1B employer, new H-1B employer

2. F-1 Student Visa with Optional Practical Training (OPT) or Curricular Practical Training (CPT)

The F-1 student visa allows you to study in a U.S. university or college and in certain circumstances obtain work authorization under the OPT and/or CPT employment programs.

OPT holders who have not completed a STEM degree are eligible for a 12-months OPT employment in the field of study as part of the F-1 student visa.

OPT holders who have completed a STEM degree are eligible to apply for an additional 24-month STEM OPT extension as part of the F-1 student visa. There are certain requirements to qualify for the 24-month STEM OPT extension (employer must be E-Verified company, extension must be filed before the current OPT expires, and others) but this is a great way for F-1 students to continue to be able to work in the U.S. You can visit the STEM list here to find which degrees have been added to the STEM list.

Additionally, certain schools and F-1 visa degree programs allow an F-1 student to engage in employment related to their field of study under the CPT employment program. The CPT employment may be part-time or full-time and may reduce the OPT period of employment in certain circumstances.

3. L-1 Visa for Intracompany Transferee

The L-1 visa allows companies with an office abroad to transfer managers, executives or specialized knowledge employees from the office abroad to work for the US office or to establish a new US office. To be eligible, the employee must have worked for the foreign entity for at least one continuous year during the last three years immediately before your admission to the United States. To learn more visit our L-1 visa page.

If your employer is an international organization and you meet the one-year employment abroad within the 3 years immediately before your admission to the United States, then the employer could use the L-1 visa for intercompany transfer.

4. E-2 Investor Visa

The E-2 visa allows foreign nationals from E-2 countries to invest a substantial amount in a new US business, purchase an existing business or franchise and obtain an E-2 visa to be able to manage and direct their investment. There is no minimum investment amount for E-2 visa but generally it is recommended to invest around $100,000 and no less than $50,000. Spouses of E-2 visa holders can work in the United States.

Managers, executives or specialized knowledge or skill employees who hold the same nationality as the E-2 business and are hired by E-2 companies and can also obtain an E-2 visa.

The E-2 visa can be granted for up to 5 years depending on your country of nationality and can be renewed indefinitely.

To learn more about E-2 visa requirements visit our E-2 visa page.     

5. E-1 Treaty Trader Visa

The E-1 visa allows a foreign national who has an employer with significant trade between the foreign national’s country and the U.S to come and work in the US. The manager, executive or specialized knowledge or skill employee must have the same nationality as the employer and also have skills which are essential to the operation of the company trade. Spouses of E-1 visa holders are eligible to work in the U.S.

The E-1 visa can be granted for up to 5 years depending on your country of nationality and can be renewed indefinitely.

To learn more visit our E-1 visa page.     

6. O-1 Visa Extraordinary Ability in Sciences, Arts, Education, Business or Athletics

O-1 visa allows individuals with extraordinary abilities or achievement in the sciences, arts (including television industry and motion picture), education, business or athletics to live and work in the United States in the area of extraordinary ability.

O-1 visa can be granted initially for 3 years and renewed indefinitely every year after the initial period of stay.

Spouses of O-1 visa holders are not allowed to work in the United States.

Persons providing essential services in support of O-1 nonimmigrants are eligible to apply for O-2 visas to come and work in the U.S.

To learn more visit our O-1 visa page.

7. TN Visa for Canadian and Mexican Professionals

TN Visa allows a US employer to hire Canadian and Mexican nationals in certain professions. The employees from Canada or Mexico must be employed in the US in one of the occupations listed in the US-Mexico-Canada Agreement (USMCA, formerly NAFTA) and hold the required degree or work experience specified in the USMCA.   

Canadian and Mexican citizens are admitted in TN visa status to provide services in certain professions and can be admitted in up to 3-year increments for full-time or part-time employment.

Canadian citizens can apply for TN visa directly with CBP along the US-Canada border or major international airport in Canada.

To learn more visit our TN visa page.

8. B-1 Visa

The B-1 visa category can be used in cases where the foreign national is required in the US for project discussions and analysis or any other work which is permissible as a ‘business activity’, as long as the foreign national is not paid in the United States. The B-1 visa can also be used to scout for investment opportunities among other activities.

9. H-1B1 for nationals of Chile or Singapore

Nationals of Singapore or Chile may be eligible for the H-1B1 visa. These visas are set aside and can be pursued at any time. The position eligibility criteria are similar to H-1B – the position must be of specialty occupation nature.

10. E-3 Visa for Australians

E-3 visa allows citizens of Australia to come and work in the United States in a specialty occupation. To qualify for an E-3 visa, a US employer must offer the Australian employee a position within the company that is available and requires specialized knowledge and at least a bachelor’s degree in the specific specialty.

The E3 Visa is generally issued for 2 years and can be renewed indefinitely but some exceptions apply.

The spouse of an E-3 visa holder can work in the United States.

To learn more, visit our E-3 visa page.

11. International Entrepreneur Rule

The International Entrepreneur Parole Program allows a foreign entrepreneur regardless of their country of origin to be granted authorized stay in the United States for up to 30 months to develop her or his startup business in the US.

To learn more about the requirements, visit our International Entrepreneur Rule page.

12. H-2B Visa

H-2B visa is available for temporary employment in the United States that generally lasts less than 1 year and is based on a seasonal, peakload, intermittent or one-time occurrence need.

H-2B visa workers must be from countries participating in the H-2B visa program. The Department of Homeland Security publishes the list of H-2B eligible countries annually. To learn more, visit our page on how to get an H-2B employee.

To learn more about requirements, visit our H-2B visa page.

13. J-1 and H-3 visa

The J-1 trainee visa is for those who participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.

Spouses and unmarried children under 21 are entitled to J-2 visa and can work in the United States. To learn more, please visit the J-1 visa page.

The H-3 visa allows foreign nationals to come the US to receive training. The employer must demonstrate that the training is not available in the foreign national’s home country and the training will benefit the foreign national in pursuing a career outside the U.S.

H-3 trainees can be granted a visa for up to 2 years. Spouse and children can accompany the trainee to the US on an H-4 visa.

14. P-1 Visa Athletes and Entertainment Group

The P-1 visa allows foreign athletes and members of entertainment groups to come temporarily to the United States solely to perform.

Spouses and children of P-1 visa holders can come to the US on P-4 visa and are not allowed to work.

To learn more about the requirements, visit our P-1 visa page.  

15. PERM and other green cards

For some of you filing for a green card directly may be an option. Green card options you can consider as an alternative to H-1B visa are:

• PERM
• EB-1 for extraordinary ability or outstanding professors and researchers
• EB-1C for multinational managers or executives; 45 days premium processing is available.  
• EB-2 NIW (National Interest Waiver); 45 days premium processing is available.  
• EB-5 Immigrant Investor Program with a required minimum investment of $800,000 or $1,050,000 depending on project location; can concurrently file adjustment of status and obtain work authorization  

Malescu Law can assist

Our Miami, Florida USA immigration lawyers can assist you with any of the alternatives to the H-1B visa presented above. If you would like to discuss your situation with us or help you strategize your case, you can contact us or book a consultation online.

Malescu Law P.A. – Business & Immigration Lawyers