Part 2: Alternatives for “H-1B Lottery Losers”

Country-Specific Visas for Professionals - With No Lottery!

Mai Chao Chang , Nicole S. Schram | 06.07.23

In this second part of our multi-part series discussing alternatives to traditional ​“cap-subject” H‑1B visas (part one can be found here), we look beyond the H‑1B to explore visa options created through or related to international free trade agreements. These treaty visas provide temporary work authorization to a broad range of professionals like the H‑1B, but they are only available to citizens of certain countries.

H‑1B1: Citizens of Chile & Singapore

Like the H‑1B, the H‑1B1 visa allows U.S. employers to temporarily employ foreign workers from Chile and Singapore in specialty occupations. Current laws cap the annual number of H‑1B1 visas issued, with 1,400 allotted to Chile and 5,400 to Singapore. However, the numerical cap on H‑1B1 visas has never been met, so no lottery is currently required.

Qualified citizens of Singapore or Chile with a U.S. job offer in a specialty occupation may apply for an H‑1B1 visa directly at the U.S. Embassy or Consulate in their home country. Or, if Chilean or Singaporean citizens are in the U.S. in a different non-immigrant status, their prospective employers can file a petition with USCIS, allowing the employee to change to H‑1B1 status without leaving the U.S. Applicants must have attained a bachelor’s degree or its equivalent (with some exceptions), and the H‑1B1 application must include an employment offer letter from the prospective U.S. employer, a certified Labor Condition Application (LCA), and other relevant supporting documents.

Once approved, H‑1B1 status and U.S. work authorization are valid for one year. Unlike H‑1B status, there is no six-year limit, and H‑1B1 workers can renew their status in one-year increments indefinitely.

A significant difference between H‑1B and H‑1B1 is that H‑1B1 employees cannot have ​“dual intent”, meaning they cannot extend their status- and they may not be re-admitted into the U.S. in H‑1B1 status after international travel- if they have applied for permanent residence in the United States or otherwise demonstrate an intent to live or work permanently in the U.S.

An H‑1B1 worker’s spouse and unmarried children under 21 years of age are eligible for derivative H‑4 status. Once they receive their visa, they can travel with the H‑1B1 employee to the U.S. and can maintain or extend their H‑4 status as long as the employee maintains or extends H‑1B1 status. Although a dependent spouse is not eligible to work while on H‑4 status, both spouse and children may attend school.

E3: Citizens of Australia

Similar to the H‑1B, Australian citizens must have a legitimate offer of employment from a U.S. employer in a position that qualifies as a specialty occupation to be eligible for E‑3 classification, and they must have earned at least the equivalent of a U.S. bachelor’s degree or possess other qualifying work experience.

Interested Australian citizens may apply for an E‑3 visa directly at a U.S. Consulate or Embassy in their home country, or their potential U.S. employer may file an E‑3 petition on their behalf from within the U.S. The required application materials are similar to those for H‑1B and H‑1B1, and U.S. Employers must submit a Labor Condition Application to the Department of Labor attesting that they will pay the prevailing wage and will comply with other regulations intended to protect U.S. workers.

E‑3 status and work authorization are valid for two years and may be extended in additional two-year increments. There are no maximum number of extensions, but some exceptions apply. The spouse and unmarried minor children (under 21 years of age) of E‑3 workers are also eligible for E‑3 visas and status, even if they are not Australian citizens. What sets the E‑3 apart from most other non-immigrant temporary work visas is that spouses of E‑3 workers are automatically authorized to work.

TN: Citizens of Canada or Mexico

The TN work visa was authorized by the North American Free Trade Agreement (NAFTA, now the U.S.-Mexico-Canada Agreement or USMCA). NAFTA Appendix 1603.D.1 lists the wide range of qualifying TN professions, along with the education and/​or experience requirements for each profession. TN non-immigrant status and work authorization can be granted for up to three years at a time, with no limit on the number of renewals.

Like the other treaty-based visas discussed here, Canadian or Mexican citizens may apply for TN status close to home, or their prospective employer may file a petition on their behalf with USCIS, allowing the employee to change to TN from a different non-immigrant status without leaving the U.S. In either scenario, the employer must provide a detailed employment offer letter, identifying the qualifying profession and providing specific details about the employment.

If the prospective employee is applying for TN status from outside the U.S., the application procedure is different for Canadian and Mexican citizens. Canadian nationals may apply for TN status by submitting their complete TN application package directly to U.S. Customs and Border Patrol (CBP) agents at the airport or U.S. border. Mexican nationals, on the other hand, must present their application to a U.S. Consular office abroad to first obtain a TN visa stamp in their passport. Once the Canadian or Mexican employee is admitted by CBP into the U.S., employment can begin immediately.

Spouses and unmarried children under age 21 may be eligible for TD nonimmigrant status and may accompany the TN worker to the U.S. While spouses and children are not permitted to work while in the U.S. under this status, they may pursue a course of study.

Conclusion

International treaties have created unique immigration opportunities for citizens of certain countries. While you or your employee may not have been chosen in the H‑1B lottery, there may be other options if you fall within one of these country-specific programs. Feel free to reach out to one of the members of our Immigration practice group at Boardman Clark for an initial consultation!