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Common US Alternatives for H-1B Cap Applicants

April 24, 2018

With the H-1B Cap Lottery completed, those awaiting selection may be eager to know what US visa alternatives are available to them. Following up on our previous article regarding Alternative Global Destinations, we will now provide an overview of the common US alternatives to H-1B.

  • L-1 Intracompany Transferee: Employees who work for a company with a qualifying entity abroad (branch/subsidiary/affiliate/parent) may explore temporary relocation to gain managerial experience or specialized knowledge abroad before returning to the US. Once a candidate works for a qualified entity for one continuous year, the employee may then apply for a managerial or specialized knowledge position in the US. This option could require a global immigration solution, so please reach out to our Global Team (global@eiglaw.com) for an assessment.

  • L-2/H-4 EAD: Employees with a spouse in L-1 visa status may change to L-2 status and immediately request an Employment Authorization Document (EAD). Similarly, employees with a spouse in H-1B visa status with an approved I-140 petition and a backlogged priority date may also request an EAD. As USCIS is currently taking up to five months to process EADs, it is important to plan in advance and consider a concurrent filing with the spouse’s L-1 or H-1B extension to take advantage of premium processing. Additionally, the Trump administration has floated plans to end the H-4 EAD program, with more information expected in June.

  • F-1 Student: Employees may always consider enrolling in a new course of study to remain in the US. Some programs provide pathways to CPT or OPT employment, but employees need to maintain very close contact with the university’s Student Officer to ensure both a timely change of status and the appropriate issuance of work authorization. Please remember, however, that the primary purpose of moving to F-1 visa status is to attend school and not to work full-time.

  • TN/E-3/H-1B1: If you are a national of Canada (TN-1), Mexico (TN-2), Australia (E-3), Singapore (H-1B1), or Chile (H-1B1), you may be eligible for a country-specific visa permitting professional employment in the US. For TNs, NAFTA Appendix 1603.D.1 lists the available professions and qualification requirements; for E-3s and H-1B1s, the qualifications mirror those of the H-1B.

  • O-1 Extraordinary Ability: Employees who have demonstrated an “extraordinary ability” and have risen to the top of their field in science, art, education, business, or athletics may qualify for a three-year O-1 visa. Given the scrutiny placed on O-1 petitions and the extensive documentation required, we recommend first contacting EIG’s Labs Team (labs@eiglaw.com) for an assessment.

Please contact your EIG attorney directly with any specific questions you may have about your options.