Miss the H-1B Cut? Here are Some Alternatives


As was expected, the H-1B cap of 65,000 was reached within the first week of the filing period. For the many employers that didn’t make the cut, this means waiting until next year to try again. However, because applications filed in 2013 are for visas valid during the following fiscal year, missing the H-1B cut this time around means your employees will not be able to work until 2015, and that’s only if you make the cut next time. Waiting until 2015 to hire foreign workers is not only burdensome, but oftentimes impossible for many employers. Fortunately, there may be some alternatives. The following are some additional visa options that might be available for employers who missed out on this year’s H-1B:

  • L-1 Intracompany Transferee: The L-1 visa is for employees of multinational corporations who wish to come to the U.S. to work for a U.S. parent, branch, or subsidiary corporation. In order to obtain an L-1 visa, the employee must either be coming to the U.S. in a managerial or executive capacity or have specialized knowledge about the company. The employee must also have worked abroad for the employer corporation continuously for one year out of the past three years prior to coming to the U.S.
  • E-1/E-2 Treaty Trader/Investor: The E-1 and E-2 categories are for treaty traders and investors, respectively. The E visa is only available to nationals of countries that have commercial treaties with the United States and are engaged in “substantial trade” between the U.S. and home country.
  • E-3 Australian Specialty Worker and TN NAFTA Professionals: Both the E-3 and the TN visas are very similar to the H-1B. The E-3 is available to Australian nationals and the TN is available exclusively to professionals from Canada and Mexico.
  • Permanent Immigration Options: There may also be options for employers to offer permanent positions to foreign workers under one of the employment-based categories. Immigrant petitions do typically take much longer than nonimmigrant petitions, though they present a viable option for many employers.

Although every H-1B eligible employee does not always fit into one of the other visa categories, these other visas often prove to be good alternatives for employers. For more information on these and other visa options for foreign workers, please contact Bill Flynn.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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