This document discusses 6 alternatives to H-1B visas for foreign national professionals: 1) Hiring options for candidates with previous H-1B status who are cap-exempt or eligible for concurrent H-1B petitions. 2) Other temporary visa options like H-1B1, E-3, TN, E-2, H-3, J-1, L-1, and O-1 visas that have different eligibility requirements and maximum periods of stay. 3) Green card options like EB-1, EB-2, EB-3 PERM labor certifications and national interest waivers that provide a path to permanent residence but require sponsorships and can take 1.

1. TOP 6 ALTERNATIVES TO H-1B VISAS
FOR FOREIGN NATIONAL PROFESSIONALS
Ann Massey Badmus
Cowles& Thompson, PC

2. WELCOME
Practice Leader
Immigration Section
Cowles & Thompson, PC
www.badmuslaw.com
Ann Massey Badmus
Presenter

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4. AGENDA
H-1B Visa Overview
Alternative Hiring Options
Alternative Temporary Visa Options
Green Card Options

5. H-1B Visa Overview

6. H-1B Nonimmigrant Visas
A nonimmigrant (temporary) visa that
allows a non-citizen to be employed
in the United States for up to 6 years
in a “specialty occupation” for a
specific employer (“petitioner”).

7. What is a Specialty Occupation?
An occupation that requires
highly skilled specialized
knowledge and
A bachelor’s or higher degree
(or its equivalent) in the specific
specialty as a minimum for entry
into the occupation

8. Employee Qualifications
Have completed a U.S. bachelor’s or higher
degree (or its foreign equivalent) or
Have education, training, or experience in
the specialty equivalent to the completion
of such degree (3:1 rule) and
Possess full state licensure if required to
practice in the state of employment

9. H-1B Numerical Limitations - “H-1B Cap”
Quota of 65,000 new H-1B visas per fiscal
year (except Free Trade Act (FTA)
nationals)
20,000 per fiscal year for persons who
hold US Master’s degrees or higher
Applies to first-time H-1B or previously
cap-exempt H-1B employees

10. Alternatives to Cap-Subject H-1B Visas

11. COMMON REASONS TO LOOK FOR OTHER OPTIONS
H-1B visa cap application rejected
Too late to apply for H-1B cap visa
H-1B maximum limit of 6 years has been reached
H-1B visa application denied

12. HIRING OPTIONS – PREVIOUS H-1B EMPLOYEES
H-1B candidates previously counted in the
cap
Remaining time on 6 year maximum period
Inside or outside the U.S.
Can apply any time

13. Cap-exempt
employers
Universities and non-profit petitioners affiliated with post-
secondary educational institutions
Government research organizations and non-profit
petitioners affiliated with government research institutions
For-profit employers who place employee at a non-profit,
university-affiliated facility for at least 50% of work week
Cap-exempt
beneficiaries
Physicians who are beneficiaries of J-1 IGA waivers only
(does not include hardship waivers or persecution
waivers)
HIRING OPTIONS – CAP EXEMPTIONS

14. For profit employer
offers part-time
employment to the
provider (ranges from
5 to 60 hours/week)
The start date of the
H-1B must be a date
before the
EMPLOYEE’s cap-
exempt H-1B expires.
Concurrent H-1B
petition is filed and
approved before
current cap-exempt
employment ends.
HIRING OPTIONS – CONCURRENT H-1B

15. F-1 Optional Practical Training (OPT) in the
field of training for12 months
17 month extension available for STEM
fields – www.ice.gov for list of occupations
E-verify required for STEM extension
HIRING OPTIONS – F-1 STUDENTS

16. Temporary Visa Options – Country Specific
H-1B1 Chile and Singapore
E-3 Australian
TN Trade NAFTA
E-2 Treaty Investor or Trader

17. Nationality – must be citizen of Singapore or Chile
Specialty occupation and other requirements similar to H-1B
Annual quota of 6,800 (1,400 professionals from Chile and
5,400 professionals from Singapore), never reached
18 month period of employment – no limit on extensions and
can change to H-1B if available
Dependent spouses cannot work
H-1B1 Specialty Occupation Professional Visa

18. Nationality – must be citizen of Australia
Specialty occupation and other
requirements similar to H-1B
Annual quota of 10,500, never reached
Two year period of employment – no limit on
extensions
Spouses can work upon USCIS approval
E-3 Specialty Occupation Professional Visa

19. Nationality – must be citizen of Mexico or Canada
Profession must be listed on the NAFTA occupations list -
8 CFR § 214.6
No quota or limit on the number of TN visas each year
Three year period of employment – no limit on extensions
Dependent Spouses cannot work
TN Trade NAFTA Professional Visa

20. Nationality – owner and employee must be citizen of treaty country –
http://travel.state.gov/content/visas/english/fees/treaty.html
Investment must be substantial in a real, operating enterprise
Treaty investor must have controlling interest (50% or more) in the
company
Essential personnel, professional, or managerial positions
Spouses can work with USCIS approval
Treaty Investor (E-2) Visa Program

21. Temporary Visa Options – training specific
H-3 trainee
J-1 exchange visitor

22. H-3 Trainee
Training in any field of endeavor, not available in home country.
Position must not be part of company operations
No productive employment
Two year maximum period of employment – no extensions
Dependent Spouses cannot work

23. J-1 Exchange Visitor Trainee
Trainee - has a degree or professional certificate & min one year work experience
outside the U.S., or has 5 years of work experience outside the U.S.
Must use approved program sponsor
Must be bona fide training program with detailed plan but some productive work
possible
18 month maximum period of training program
Spouses can work with USCIS approval
Caution: Possible two year home residence requirement (check country skills list)

24. Temporary Visa Options – General
L-1 transferee
O-1 extraordinary ability

25. Temporary transfer of employee to the US to continue employment
with parent, branch, or subsidiary of foreign business.
L-1A executive or high level managerial employee or L-1B
specialized knowledge employee
Employee must have been employed with foreign business for
continuous period of at least 1yr within the last 3yrs.
Five to seven years maximum period of employment
Spouses can work with USCIS approval
L-1 Transferee Visa

26. Must show sustained national or international acclaim in
applicant’s field of endeavor
Overall evidence must show applicant has “risen to the top
of the field”
Employer required and expert/peer consultation required
Three year initial period of employment, unlimited extensions
Dependent spouses cannot work
O-1 Extraordinary Ability Visa

27. Temporary Visa Options – Dependent
Spouses
H-4 (H-1B spouse)
E-2 dependent
E-3 dependent
L-2
J-2Employment Authorization Document
(EAD)

28. Green Card Options

29. Employer’s application for specific employee
Employer must show no available and qualified U.S. citizen
or permanent resident physician through local recruitment
Employer must show ability to pay prevailing wage
Employee must be qualified at the time of filing of labor
certification
EB-2 advanced degree, EB-3 professionals and
skilled/unskilled workers
EB-2/EB-3 PERM Labor certification

30. General – applies to any profession if work is in national
interest
Physician – 5 years medical care in HPSA or MUA –
specialties accepted
Self-sponsored and self-employment possible – job offer
not required
Employment authorization document available while
application is processing, for most applicants
National Interest Waiver

31. Must show sustained national or international acclaim
in applicant’s field of endeavor
Overall evidence must show applicant has “risen to
the top of the field”
Must show prospective contribution to the United
States
Can be self-sponsored but must show prospective
employment in the U.S
EB-1A Extraordinary Ability

32. TIMELINE
Immigrant Visa Number must be
available. Visa backlog delays
Physicians with IGA J-1 waivers
cannot obtain permanent residence
before completion of service
Employment authorization available
within 4 to 8 months while waiting for
approval (in most cases)
Permanent Residence (green card)
within 1.5 to 3 years for most (subject
to fluctuation)

33. • Facts of each case are different.
• Other options may be available depending
upon employment circumstances.
• The information provided here is general in
nature and should not be relied upon for
specific situations and is not legal advice.
• Consult with an experienced immigration
attorney to get the right advice and
direction.

34. QUESTIONS?

35. FOR FURTHER INFORMATION
Ann Massey Badmus
901 Main Street
Suite 3900
Dallas, Texas 75202
214-672-2161
abadmus@cowlesthompson.com
www.badmuslaw.com