The H-1B nonimmigrant visa is a terrific option for U.S. employers seeking to overcome challenges in filling open positions that require a Bachelor’s or higher-level degree in a field of study related to the job. However, the lottery by which the winners of the 85,000 H-1B visas available as of each October 1st are selected has already been conducted by the U.S. Citizenship and Immigration Services (“USCIS”), and the winners are likely in the process of preparing and filing their H-1B petitions. But what about the substantial number of U.S. employers whose lottery entries for foreign national candidates were not selected in the lottery? Are there any viable options for those who are not amongst the very limited number of employers nationwide who have won the H-1B lottery?
The answer is – perhaps! Here are some alternatives to the H-1B nonimmigrant visa that U.S. employers may wish to explore:
Foreign Nationals Who Are in the U.S. on F-1 Student Visas
Foreign national students who are pursuing degrees at U.S. schools on F-1 visas are popular candidates for U.S. employers to recruit. There are two options available that would allow these students to work for a U.S. employer:
- Curricular Practical Training (CPT) – Foreign students must still be enrolled in a full-time course of study at a U.S. post-secondary educational institution in order to pursue this option. To qualify, they need a job opportunity from a U.S. employer in a job directly related to their field of study, and practical training must be an integral part of the school’s established curriculum. We recommend U.S. employers partner with local universities where possible to develop a pipeline for foreign national students eligible for CPT.
- Optional Practical Training (OPT) – All foreign national students on an F-1 visa are automatically eligible for up to a total of 12 months of “regular” OPT after completing one academic year of full-time study (pre-completion OPT), or following their graduation from a U.S. post-secondary educational institution (post-completion OPT). Therefore, this is a reliable option for U.S. employers seeking to hire foreign nationals who are recent graduates of a U.S. college or university. In the case of OPT, the offered job must be in a field related to their degree. The student can work for up to 12 months pursuant to their grant of OPT.
Additionally, if a foreign national is a graduate from a Science, Technology, Engineering or Math (“STEM”) degree program at a U.S. post-secondary institution, they can also receive an additional 24 months of STEM OPT on top of the initial 12 months of OPT they are entitled to receive. This allows foreign national students who have graduated from a STEM degree program at a U.S. university to work for a U.S. employer for as long as three years, provided that the job is in related to their field of study. However, U.S. employers wishing to employ a foreign student on STEM OPT should be aware that they must enroll in E-Verify.
Tips for Employers: Most schools that host foreign national students have a designated school official (DSO) who runs their student visa program, and although a U.S. employer may not be able to work directly with the DSO due to privacy concerns, employers should certainly encourage any potential new employees who are foreign national students to work with their DSO to see if CPT, OPT or STEM OPT are options available to them.
Visas Specific to Certain Countries of National Origin
There are three separate visas that are virtually identical to the H-1B visa, but are only available to nationals of certain countries.
- H-1B1 Visa – Available ONLY to citizens of Chile or Singapore. Like the H-1B visa, the H-1B1 visa program requires the job offered by the U.S. employer to require at least the equivalent of a U.S. bachelor’s degree in a field related to the job. The other significant difference between the H-1B1 and the H-1B visa is that foreign nationals working under an H-1B1 cannot simultaneously pursue a green card while they are working in the U.S. However, while the H-1B1 visa program has an annual numerical limit like the H-1B visa program, the H-1B1’s annual limit has never been reached, so there is no lottery. If a foreign national qualifies, a U.S. employer may sponsor them for an H-1B1 visa any time.
- E-3 Visa – Available ONLY to citizens of Australia, and otherwise identical criteria for the H-1B and H-1B1.
- TN Visa – Available ONLY to citizens of Canada and Mexico. The TN visa was created through the North American Free Trade Agreement (“NAFTA”) and contains a list of roughly 60 professional occupations eligible for TN visas. Like the H-1B visa, the TN visa requires the job offered by the U.S. employer to require at least a U.S. bachelor’s degree in a field related to the job. However, the offered job must also fall under one of the roughly 60 categories of “Professional Occupations” listed under the pertinent section of NAFTA. Foreign nationals working under a TN visa cannot simultaneously pursue a green card while they are working in the U.S.
Alternative Visa Options
There are other nonimmigrant visa options available to U.S. employers, but they are generally more constrained in terms of eligibility criteria and often are not suited for foreign students who are entry-level workers, thus making them less likely to yield a large pool of such eligible applicants for employers.
- O-1 Visa – for individuals with extraordinary ability or achievement. This visa is broken down into two sub-categories: the O-1A for those with extraordinary ability in science, business, education or athletics, and the O-1B for those with extraordinary ability in the arts or extraordinary achievement in motion pictures or TV. Not only does the foreign national need to have demonstrable sustained national or international recognition for their extraordinary ability or achievement, there must also be a U.S. job available to the foreign national that requires such extraordinary ability or achievement. Foreign nationals working under an O-1 visa may simultaneously pursue a green card while employed in the U.S.
- L-1 Visa – an intracompany transferee visa. If a U.S. employer has a branch office in another country, or if the U.S. employer is a parent, subsidiary or an affiliate of a foreign company, then the L-1 visa program may be a viable option for employing a foreign national in the U.S. The L-1 visa allows U.S. employers who satisfy the aforementioned relationship requirement with a foreign company to transfer employees from foreign branch offices, affiliates or subsidiaries to work in the U.S. This visa category is broken into two sub-categories of qualifying work capacities: the L-1A visa for executives and managers, and the L-1B for employees with specialized knowledge relating to the company’s interests. The foreign national employee must have worked for the properly-related foreign company in a qualifying capacity for one full and continuous year within the last three years and the offered position in the U.S. must also be in a qualifying capacity. Foreign nationals working under an L-1 visa may simultaneously pursue a green card while employed in the U.S.
It has become increasingly difficult to recruit and retain talent, and U.S. employers are increasingly willing to consider employing foreign nationals in order to fill their open positions. If one of the above-described options may be a good fit for your company and for your foreign national job candidate, we encourage you to contact us for a consultation.