Tag: h1-B visa

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Exploring Alternatives to the H-1B Visa

Exploring Alternatives to the H-1B Visa
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The H-1B visa is a popular choice for U.S. work visas, allowing individuals to work in specialty occupations. However, due to the high demand, many applicants do not secure an H-1B visa through the annual lottery. If you weren’t selected in the H-1B Cap Lottery for Fiscal Year 2025, which closed on March 25, 2024, and announced results on April 1, 2024, there are still several viable alternatives to explore.

1. H-1B Work Authorization for Cap-Exempt Employers

Not all H-1B employment falls under the annual cap. Certain employers can file cap-exempt petitions at any time, including:

  • Institutions of higher education or affiliated nonprofit entities
  • Nonprofit research organizations
  • Government research organizations

Additionally, cap-subject employers can hire H-1B visa holders who also work for a cap-exempt employer, provided they maintain their cap-exempt employment throughout the H-1B validity period.

2. F-1 Work Authorization Options

International students in the U.S. might extend their employment authorization through Optional Practical Training (OPT):

  • Non-STEM graduates can receive up to 12 months of work authorization post-graduation.
  • STEM graduates can receive up to 36 months of work authorization, provided their employer is enrolled in E-Verify.

Another option is enrolling in a new university program to work under F-1 Curricular Practical Training (CPT). However, this route carries risks, including potential requests for additional evidence in future H-1B petitions. It’s crucial to thoroughly research and maintain documentation of your student status.

3. Dependent Work Authorization Tied to a Spouse’s Employment

Spouses of visa holders such as E-2, E-3, H-1B, and L-1 may be eligible for work authorization:

  • Spouses of E and L visa holders are automatically authorized to work as indicated on their I-94 document.
  • Spouses of H-1B visa holders (H-4 visa) can work if the H-1B holder has reached a significant milestone in the green card process and the H-4 spouse has applied for an Employment Authorization Document (EAD).

4. Country-Specific Visa Categories

Citizens of countries with specific trade agreements with the U.S. can benefit from specialized work visas:

  • TN visas for Canadians and Mexicans in specified professional occupations.
  • H-1B1 visas for Chileans and Singaporeans in specialty occupations.
  • E-3 visas for Australians in specialty occupations.

These visas typically do not lead directly to green cards, so continuing to enter the H-1B lottery is advisable for long-term U.S. residency.

5. E-1/E-2 Visas for Treaty Traders & Investors

Nationals from countries with U.S. treaties can apply for E-1 (treaty trader) or E-2 (treaty investor) visas. These visas apply to executives or specialized employees of companies with the same nationality as the applicant. However, like other visas, they don’t directly lead to green cards, so participating in the H-1B lottery is still recommended.

6. O-1 Visa for Individuals with Extraordinary Ability

Individuals with exceptional talent in sciences, education, arts, business, or athletics may qualify for an O-1 visa. This category includes specific provisions for PhDs in STEM fields. Similar to other alternatives, this visa doesn’t provide a clear path to a green card.

7. L-1 Visa for Intracompany Transferees

Employees of international companies with U.S. branches might qualify for an L-1 visa if:

  • The U.S. and foreign entities have a qualifying relationship.
  • The applicant has worked for the foreign entity for at least one year in the past three years.
  • The employment is in a managerial or specialized knowledge role.

8. Green Card Options

Though not an immediate solution, applying for a green card can lead to long-term U.S. work authorization. Some categories allow self-petitioning without employer sponsorship:

  • EB-1 for individuals of extraordinary ability, requiring proof of sustained acclaim.
  • EB-2 with a National Interest Waiver for individuals with advanced degrees or exceptional abilities, demonstrating that their work benefits the U.S.

By understanding these alternatives, individuals not selected in the H-1B lottery can still find viable paths to work and remain in the U.S.

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It’s Layoff Season for Tech Industry Workers

Its Layoff Season for Tech Industry Workers
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What options do terminated H1B employees have?

In prior years, there was usually a lot of excitement building up towards the period when the US Citizenship & Immigration Service (USCIS) opens the period for accepting H1B petitions. But this year is different. 

Beginning last quarter of 2022 up to the present, giant tech employers have been announcing mass layoffs of thousands of their employees citing economic uncertainty and fear of a coming recession. While there are no exact figures of how many are holders of H1B visas among those who were terminated, we are receiving a lot of inquiries by terminated H1B holders on what options they have to continue staying in the United States.

Generally, an H1B visa holder must leave the U.S. before the end of 60 days from date of termination. But if the worker is not ready to depart,  what are the available options to allow them to continue to stay in the United States?

  1. Find a new U.S. employer. A terminated H1B visa holder may apply for a new job with a different employer.  This new employer must be filed before the 60 days expire. 
  1. Negotiate with the Current Employer. Being laid off comes as a surprise to many and usually it is a sudden news that is received by a terminated employee, i.e. no advance notice. But if a Notice of Termination is already received, depending on the company policy, one may negotiate for an extended termination date until the H1B employee finds a new employer in exchange for a lower severance pay. This is just an option as many H1B visa holders find that maintaining status is more a priority than the amount of severance pay.
  1. Change Status. If the deadline to leave the country is fast approaching and  the negotiation for extended termination date is not granted, consider filing for a change of status for either a visitor visa (B2) or a student visa (F1). Or, the H1B visa may also be changed to an O1 visa which will also permit the individual to work. The standards for O1 are different from an H1B, thus requiring an advice/analysis from a legal counsel. This application for change of status must be filed within the 60 day grace period.
  1. Adjust Status. This situation is specific to those who have a U.S. citizen fiancé or are already in a relationship. They may want to consider marriage and have their spouses petition them. A simultaneous petition and adjustment of status may be filed.
  1. Consider forming a Start Up Entity. An investor visa (temporary or permanent) may be an option for a terminated H1B visa holder who has the capacity to invest in a new U.S. entity and meets the eligibility requirements set by pertinent regulations.

Realizing that thousands of talented foreign nationals are affected by these mass layoffs, there are venture capitalists and or other smaller firms, who may be sympathetic and willing to hire these H1B employees.

When all options have been exhausted and there is no such luck, or perhaps, there is not enough time to change status or find a new employer within the 60 days period, it may be best to consider leaving the United States in order to preserve one’s option of returning in the future without any negative consequence. 

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C.. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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Another reason why the US needs to review the H-1B visa policy

Another reason why the US needs to review the H-1B visa policy
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A new study has been released pointing to the benefits of expanding the United States’ H-1B visa policy.

Let’s first discuss the H-1B: The H-1B is a visa in the US that allows US employers to temporarily hire foreign workers in specialty occupations. 

An H-1B worker’s spouse and children can accompany the worker to the US by obtaining H-4 visas, which are not visas that allow them to work in the US.

The study found, however, that most H-1B visa holders are married to skilled workers. The problem is that most of them only have H-4 visas.

To be allowed to work, these spouses need to wait for their H-1B spouses being on queue for a permanent visa, which would then allow them to apply for employment authorization. This can be a wait that takes years.

In the study of the National Foundation for American Policy (NFAP), the US H-1B rules were compared to equivalent rules in Canada, and found that it could lead to a brain drain for the US.

This is because under Canada rules, all spouses of skilled workers are also granted work authorization.

A change in policy to allow spouses to work, according to the study, would mean economic benefits for American businesses. 

“Research has shown that the H-1B visa category boosts US economic growth, creates jobs for American workers, and slows offshoring of high-paid jobs. Extending work eligibility to the spouses of H-1B visa holders would help the United States garner more of the economic benefits that skilled foreign workers create,” the study said.

For advice on H-1B visas and work authorizations, consult a trusted immigration lawyer.

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The H-1B visa: A pathway to work for healthcare workers

The H-1B visa: A pathway to work for healthcare workers
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Application for the H-1B visa is around the corner as the new year of 2023 is fast approaching. This year, the H-1B registration ran from March 1 to March 18. Let’s talk about how it works and if you or someone you know can qualify for it and can even benefit from its cap exemption.

This may benefit those especially in the healthcare industry.

Understanding the H-1B

The H-1B visa is known to be for professionals in general, but what is commonly understated is how healthcare workers can apply for this visa. 

The H-1B visa is a temporary visa for professionals in specialty jobs that typically require a bachelor’s degree or an equivalent. The US employer (not the worker) must file a petition, and if granted, the H-1B will be valid for 3 years and can be renewed for 3 more years.

The cap you need to know

Since there are so many professionals who seek the H-1B visa yearly, the United States government has placed a cap on the number of people who can get them. To decide who to give the H-1B to, they hold a visa lottery – choosing who gets the visa randomly.

The H-1B visa lottery is limited to 65,000 H-1B visas for each fiscal year, with an additional 20,000 saved for people holding a master’s degree or higher from a US institution. 

Before you even start stressing about the H-1B lottery, it’s important to understand which jobs qualify for this visa. Only specialty occupations qualify for an H-1B, which means that the job requires a bachelor’s degree or higher (or its equivalent in work experience) in a specialized field like IT, engineering, or medicine. But, not every medical job is eligible for an H-1B.

Which healthcare workers are eligible for H-1B visas?

While a majority of health care works are educated and specialized, only some types of health care jobs qualify for an H-1B visa. The three main categories of healthcare jobs that qualify for H-1Bs are nurses, physical therapists, and physicians. Here’s what you need to know about each category.

Nurses

As far as nurses go, generally only nurse practitioners, nurse administrators, and nurse managers are generally qualified for an H-1B. Why not RNs? Well, registered nurse (RN) positions normally require only a two-year degree, so RNs don’t meet the standard educational requirement for an H-1B. However, there have been instances where RNs with really specialized knowledge and perhaps an accompanying certificate, e.g. an emergency room cert, may qualify.

Physical therapists 

Because a bachelor’s degree is generally a minimum standard requirement for this kind of work, physical therapists are generally eligible for an H-1B visa. Foreign physical therapists must, of course, have a bachelor’s degree or equivalent, have their educational credentials verified through FCCPT, and obtain a US state PT license. 

Physicians

Doctors may apply for an H-1B visa to participate in a residency program, teach or conduct research, and work at a healthcare facility. Each doctor must pass the three-step examination for medical licensing through the United States Medical Licensing Examination (USMLE). This test examines clinical knowledge, clinical skills, and includes a spoken English assessment. 

There are approximately 127,000 immigrant physicians in the US who account for nearly a quarter of all the country’s licensed physicians. A majority of these doctors come from India, the Caribbean, Pakistan, Philippines, and Mexico. As you can see, the US relies heavily on foreign-born physicians. 

Can healthcare workers be exempted from the cap? 

Yes.

Some hospitals and health care systems qualify for an H-1B cap-exemption. This allows USCIS to approve H-1B visa petitions for some professions beyond its 85,000 annual cap, and applications for such positions can be filed during any time of the year.

A qualifying nonprofit institution of higher learning or a qualifying nonprofit affiliated with an institution of higher learning can be cap-exempt. H-1B cap-exempt health care categories include:

  • Institutions of higher education (colleges and universities)
  • Non-profit entities related to or affiliated with institutions of higher education
  • Nonprofit research organizations
  • Federal government research organizations
  • State and local government research entities

A healthcare organization, such as a hospital, can be cap-exempt if it can prove it’s related to or affiliated with an institution of higher education. This nonprofit relationship or affiliation can take the form of ownership or board control, or even formal research cooperation.

Unsure about how you can get an H-1B visa? Consult your trusted immigration lawyer.

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Firms May Submit Investigations If Extension of Status/Change of Employer Petition Has Been waiting for 210 Days or More

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On April 21, 2016, USCIS initiated letting requesters who filed Form I-129, Petition for a Non-immigrant Worker, requesting a status extension or change of employer to submit an inquiry after their petition has been waiting for 210 days or more.
To submit an inquiry, petitioners may call the National Customer Service Center at 1-800-375-5283, (TTD for deaf and hard of hearing: 1-800-767-1833) provide the receipt number of the case, and specify that the case has been pending for 210 days or more.

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USCIS Concludes the Data Entry of Financial Year 2017 H-1B Cap-Subject Petitions

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USCIS give out a news today specifying that they have completed data entry of the all the H1B Fiscal Year 2017 cap subject petitions. USCIS will start to return all the petitions that were not selected. The petitioners should not interact with USCIS regarding their H1B petition until they receive some sort of communication about their petition either a reject notice or case receipt. An announcement will be issued by USCIS once all the unselected petitions have been returned.In addition, USCIS is moving some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. You will receive notification in the mail, if your case is transferred. After receiving the notification, please send all future correspondence to the center processing your petition. If you are filing a Form I-907, Request for Premium Processing, to upgrade your Form I-129 H-1B petition to premium processing, send the completed Form I-907 with the appropriate fee to the center processing your petition.

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H-1B Cap Premium Processing to Begin May 12 for the Financial Year 2017

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U.S. Citizenship and Immigration Services (USCIS) will be initiating the premium processing for cap-subject H-1B petitions requesting premium processing, comprising petitions pursuing an exemption for individuals with a U.S. master’s degree or higher on May 12, 2016.

USCIS first broadcasted in a news announcement that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season. USCIS provides premium processing service for certain employment-based petitions and assurances a 15-calendar-day processing time.

For H-1B petitions that are not matter to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin on May 12, 2016, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

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US plans to talk to India about H-1B and L-1 visa fee hikes

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The US has planned to hold a discussion with India in April over the recent H-1B and visa fee increase. According to the Indian media statement, it mainly disturbs the Indian owned companies in the US. The US has agreed discussions following India’s complaint against its move to raise visa fees for non-immigrant workers at the World Trade Organization (WTO).

Indian Government, Ministry of Commerce is functioning with a set of legal mentors to validate that the visa rules victimize Indian IT organizations working in the US. “We want the US to see our point of view at the consultation stage itself and revoke the visa fee hike, but this is unlikely to happen. We have to be ready to fight a case at the dispute panel. Our legal team is trying to prove violation of WTO rules on both de facto (in effect) and de jure (by law) basis,” the Commerce Ministry official said.

According to Nasscom Assessment:
The change would affect losses estimated at $400 million for Indian IT firms. The Ministry of External Affairs (MEA) said: “The MEA is intense to settle the matter during the WTO consultation process as it does not want yet another problematical situation with the US on trade and economic matters.”

This will be a challenging case for India to argue at the WTO as the legislation is applicable on all companies and doesn’t explicitly target Indian companies. Official said: “Our legal team has to prove that discrimination is taking place by providing data which shows that it is only Indian companies that are getting affected because of the increased visa fees and not the American companies”. The US has suggested April 5-6 as probable dates for consultations. We look at the readiness of our officials around that time and respond accordingly.

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H-1B Petitions for Fiscal Year 2017

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USCIS will start accepting H-1B petitions subject to the fiscal year (FY) 2017 cap from April 1, 2016. The H-1B visa program allows employers to hire foreign workers in specialty occupations that require the imaginary or practical application of highly specialized knowledge, such as engineers, scientists, and computer programmers.

The required cap on H-1B visas for FY 2017 is 65,000.The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap. The number of petitions received will be monitored and notified to the public by an agency when the H-1B cap has been met.

To Avoid Delays in Processing:
USCIS is expecting to receive more than 65000 petitions during the first five business days of this program. In order to avoid delays in processing, H-1B petitioners must follow all legal and regulatory requirements.

USCIS has developed detailed information, including an optional checklist, Form M-735, Optional Checklist for Form I-129 H-1B Filings, on how to complete and submit an FY 2017 H-1B petition. The optional checklist for FY 2017 will be available within the next week. Employers should take action as early as possible to initiate any cap-subject H-1B petitions. Cases will be acknowledged on the date USCIS receives a properly filed petition with the appropriate fees.