Last year USCIS received approximately 483,927 H-1B petitions for the fiscal year 2023. With uncertainty looming large as to who may or may not obtain an H-1B in the 2024 H-1B Fiscal Year Lottery, it is time that prospective H-1B visa beneficiary start exploring other work visa options that may allow them to work and live in the United States on a temporary basis. This article provides a snapshot of possible work visa options that may be available to prospective H-1B nonimmigrant work visa beneficiaries who do not get chosen to be among the lucky few who are chosen to be in the 2024 Fiscal year H-1B cap.
CAP-EXEMPT H-1B VISAS:
There are certain categories of cap-exempt H-1B visas. One such category is for foreign nationals having (or hoping to have) an employment offer from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization.
To be classified as cap-exempt, it is not mandatory that the prospective H-1B employee should be employed by the institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. Prospective H-1B employees, employed by any employer, who will perform the majority of his/her work at the qualifying institutions could qualify for the cap-exempt H-1B classification provided the work performed should ‘predominantly further’ the normal, primary, or essential purpose of the qualifying academic
institution of higher education.
To illustrate, consider the case of an Information Technology (IT) company having a contract with a U.S. University for hiring and placing IT consultants for developing/customizing University’s software. Assuming that IT consultants hired by the consulting company will primarily work developing/customizing University’s software and that the work will benefit the university in reaching one of its stated primary or essential goals then it is arguable that such employees may be treated as H-1B cap-exempt employees even though they will not be employed directly by the
OTHER PROFESSIONAL SPECIALTY WORKER VISAS TO CONSIDER SUCH AS H-
1B1, TN AND E-3 VISAS:
There are three nonimmigrant visa categories that are similar to H-1B visas that are designated for temporary professional workers from specific countries. These visas are based upon specific trade agreements that foreign nations have signed with the United States. Consideration of the existence of these visa types may also lead HR Professionals to hone their recruitment methodologies so as to focus on this potential pool of candidates.
The ‘H-1B1’ visa program is designed specifically for the nationals of Chile and Singapore. Up to 6,800 visas (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore) are set aside each Fiscal Year from the H-1B cap of 65,000. The H-1B1 can be obtained at the U.S. Consulate/Embassy abroad without submitting a petition to the USCIS.
Additionally, Canadian and Mexican temporary professional workers may explore the option of TN classification. The regulations specify various categories of professions as well as the minimum qualifications for each profession that are covered by chapter 16 Appendix 2 of the United States – Mexico-Canada Agreement (USMCA). In the Annex is a list of professional positions for which qualifying candidates can enter the us to work for U.S. employers.
Further, nationals of the Commonwealth of Australia may qualify for E-3 temporary work visas. Like the H-1B1, E-3 visas are subject to an annual cap of 10,500 per fiscal year. The E-3 candidate needs to obtain a Labor Condition Application (LCA) as a precursor to the grant of E-3 status.
Occupationally, H-1B1, TN and E-3 mirror the H-1B visa in that the foreign worker must be employed in a “specialty occupation”. While both H-1B1 and E-3 requires Labor Condition Application