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Exploring Alternative Routes: Beyond H-1B and PERM

The U.S. immigration system allows multiple ways for employers to sponsor foreign workers for both temporary employment and permanent employment. Employers sponsor foreign workers for temporary employment through non-immigrant work visas. Although there are a variety of temporary work visas to choose from, one of the most popular work visas utilized is the H-1B visa for specialty occupations. While the H-1B visa program is a popular choice, employers and foreign workers face constraints due to the annual numerical quota that makes it difficult for an employer to secure an H-1B visa for a foreign worker if subject to the cap. Specifically, there are only a certain number of H-1B visas available each year – 65,000 under the “regular cap” and 20,000 under the advanced degree exemption. Due to high demand, H-1B registrants are put into a lottery system. Only those selected pursuant to the H-1B cap can move on to file an H-1B petition.

Similarly, U.S. immigration law provides employers with a variety of ways to sponsor foreign workers for permanent resident status, also known as a green card holder, through employment in the United States. The most popular option for employers is to sponsor a foreign worker for a green card through the PERM-based green card process. Jobs that require a PERM application will support an EB-2 or EB-3 I-140 petition. The PERM labor certification process can be a tedious and expensive process for employers and involves intricate procedures and prolonged waiting periods. Further, for certain individuals, the wait for a green card under the EB-2 and EB-3 categories can be exceptionally long. (For more detailed information on the PERM process visit: PERM FAQs)

The H-1B visa and the PERM-based green card process have long been predominant pathways for foreign nationals to work in the U.S. However, the limitations and challenges associated with these options have prompted individuals and employers to explore alternative options to navigate the complex immigration landscape. In response to these limitations, employers and employees should explore alternative routes that offer practical options for securing a work visa, whether temporary or permanent, in the U.S.

Alternative Options Beyond the H-1B Temporary Work Visa

  1. Cap-Exempt H-1B Visa

Certain employers are considered exempt from the H-1B cap, meaning they are not subject to the annual numerical quota. These employers include (1) institutions of higher education, (2) non-profit entities related or affiliated with institutions of higher education, (3) non-profit research organizations, and (4) government research organizations. The cap exempt employer can file an H-1B petition on behalf of a foreign worker at any time of the year and the foreign worker can begin work as soon as the H-1B petition is approved.

Further, foreign workers seeking concurrent H-1B employment can thereafter have a cap-subject employer file for H-1B concurrent employment. However, it is important to note that if employment with the cap-exempt employer ends, the H-1B worker will not be able to continue to work for the H-1B cap-subject employer without obtaining an approved H-1B petition through the normal H-1B lottery process.

  1. O-1 Visa: Extraordinary Ability

The O-1 visa is designed for individuals with extraordinary abilities or achievements in the fields of sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim. This visa category does not have annual numerical limitations, making it a very attractive option for qualifying professionals. Applicants must demonstrate extraordinary ability in their respective fields through, for example, national or international awards, published materials about the applicant in professional/major trade publications, memberships in organizations requiring outstanding achievement, or other significant contributions. Further, the O-1 visa is typically valid for 3 years and can be extended indefinitely in 1-year increments under certain situations. It is important to note that the O-1 visa does not require a PERM labor certification, but does still require sponsorship by a U.S. employer.

  1. L-1 Visa: Intra-Company Transfers

The L-1 visa is utilized by multinational companies aiming to transfer employees from affiliated foreign offices to the United States. Divided into L-1A for managerial or executive roles and L-1B for specialized knowledge positions, this visa permits qualified foreign workers to work temporarily in the U.S. for a specified employer. The L-1 visa does not require a PERM labor certification, streamlining the process for eligible candidates.

More specifically, a U.S. employer must have qualifying relationship with a foreign company: parent company, branch, subsidiary, or affiliate. The employee must have worked full time for the foreign company for one year within the last three years as a manager, executive, or in a specialized knowledge capacity. Further, the U.S. position must be in a manager or executive capacity (L-1A) or in a specialized knowledge capacity (L-1B). The L-1A visa may be issued for up to 7 years with an option to fast-track the green card (EB1-C discussed below) and the L-1B visa may be issued for up to 5 years. Further, unlike the H-1B, the L-1 visa is not numerically capped.

  1. TN Visa: NAFTA Professionals – Mexican and Canadian Citizens

The TN visa is a non-immigrant visa category created by the North American Free Trade Agreement (NAFTA), now the United States-Mexico-Canada Agreement (USMCA), for certain professional positions. This visa permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level. This visa category covers various enumerated professions, including but not limited to engineers, scientists, teachers, and management consultants. Eligible individuals must meet specific educational and professional criteria outlined in the agreement. Further, the TN may initially be granted for up to 3 years, and can be extended in 3 year increments, with no limit on number of extensions as long as certain conditions are met. Also, unlike the H-1B, the TN visa is not numerically capped. The TN is not a dual intent visa. 

  1. E-3 Visa: Specialty Occupation Workers – Australian Citizens

The E-3 visa is similar to the H-1B visa, but it applies specifically to Australian citizens. The foreign worker must be coming to the U.S. to work in a specialty occupation, requires an LCA, and requires the attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent. The E-3 visa has an annual numerical limit, or cap, of 10,500 visas each fiscal year, but this number is rarely, if ever, reached. This means a “lottery” is not needed. Further, the E-3 may initially be granted for 2 years and can be extended in 2 year increments, with no limit on number of extensions as long as certain conditions are met.  The E-3 is not a dual intent visa. 

  1. H-1B1 Visa: Specialty Occupation Workers – Citizens of Singapore and Chile

The H-1B1 visa is similar to the H-1B visa, but it applies specifically to citizens of Singapore and Chile. The foreign worker must be coming to the U.S. to work in a specialty occupation, requires an LCA, and requires the attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent. The H-1B1visa has an annual numerical limit, or cap, of 6,800 visas each fiscal year, but this number is rarely, if ever, reached. This means a “lottery” is not needed. Further, the H-1B1 may initially be granted for 1 year and can be extended in 1-year increments, with no limit on number of extensions if certain conditions are met. The H-1B1 is not a dual intent visa.  

  1. E-1 Treaty Trader and E-2 Treaty Investor Visas

The E-1/E-2 visa category allows foreign nationals who are citizens of countries with which the United States has certain types of treaties to engage in activities as a treaty trader, as a treaty investor, or as an employee of a qualifying E visa entity. An E-1 treaty trader engages in substantial international trade of goods, services, or technology between the treaty country and the United States. An E-2 treaty investor may be admitted to the United States to develop and direct the operations of an enterprise in which he/she has invested, or of an enterprise in which he/she is actively in the process of investing, a substantial amount of capital. E-1/E-2 status is valid up to 2 years, and can be extended in 2 year increments, with no limit on number of extensions if certain conditions are met. The E-1/E-2 is not a dual intent visa. 

Alternatives to the PERM-Based Green Card Process

  1. EB-1A Extraordinary Ability 

The EB-1A immigrant visa for individuals with extraordinary ability has similar requirements to the O-1 visa, but the standards are much higher. This immigrant visa category is for those who have risen to the very top of their field. The individual must have extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim with recognized achievements in his/her field of expertise. Individuals applying under this category can self-petition, meaning a job offer and a PERM labor certification is not required. Further, individuals born in countries with an extremely long visa backlog such as India, can potentially obtain a green card much faster than filing in the EB-2 or EB-3 category.

  2. EB-1C for Multinational Managers or Executives 

The EB-1C category is used by international companies who have a foreign worker working abroad in a manager or executive capacity and who now have a need for that individual to work in that same capacity for the U.S. employer. To qualify, (1) there must be a qualifying relationship between employer abroad and the U.S. employer – this can be a parent subsidiary relationship for example or an affiliate (2) The petitioning employer must be a U.S. employer doing business at least 1 year in the U.S., (3) The employee must be employed in a managerial or executive capacity for the qualifying employer abroad  for at least 1 year in the 3 years preceding the petition and they must be coming into the U.S. as a Manager or Executive. This immigrant visa category is very similar to the L-1A nonimmigrant visa category.

Foreign workers must have a job offer, but a PERM labor certification is not required. Further, just like with EB-1A, individuals born in countries with an extremely long visa backlog such as India, can potentially obtain a green card much faster than filing in the EB-2 or EB-3 category.

 3. National Interest Waiver 

Those seeking a national interest waiver are requesting that the PERM labor certification be waived because it is in the interest of the U.S. to do so. To qualify, the foreign worker must first meet the advanced degree requirement or be an individual of exceptional ability. Second, they must prove that employment in the U.S. would greatly benefit the nation. To determine this, USCIS will look at:

  • Whether the individual’s work has both substantial merit and national importance (e.g. performing important research that advances scientific knowledge);
  • Whether the individual is well positioned to advance their proposed endeavor (e.g. education, skills, knowledge, a model or plan for future activities; any progress towards achieving the proposed work; and the interest of potential users, investors)
  • Whether, as a whole, it would be beneficial to the U.S. to waive the requirements of a job offer and labor certification – for example, the evidence will need to show that even if there was a qualified U.S. worker for the position, the beneficiary’s work would greatly benefit the U.S.

Although the foreign worker would still be filing under the EB-2 category, they will not need a job offer (may self-petition) and a PERM Labor Certification is not required.   

 4. EB-5 Immigrant Investor Program

The EB-5 Immigrant Investor Program provides a pathway to lawful permanent residency for foreign investors who make a substantial investment in a commercial enterprise in the U.S. The foreign investor must invest a specified amount of capital, create a certain number of jobs, and meet other complex program requirements to qualify for the immigrant visa. The EB-5 program provides a great opportunity to individuals and their families to obtain a green card through investment.  For more information on this program, visit: EB-5 FAQs

Although the H-1B visa and PERM-based green card process have long served as primary routes for those seeking temporary and permanent employment in the U.S., exploring alternative options can offer practical and sometimes faster pathways for individuals and employers. The variety of work visas available cater to different skill sets, investment capacities, and business need, providing flexibility and opportunities in navigating complex U.S. immigration laws. Understanding and considering these alternative routes can empower individuals and organizations to make informed decisions about the immigration options available.

As an immigration law firm that has been serving our clients for over 25 years, our team is here to offer prompt, practical, and professional advice, whether you’re a company seeking to hire top talent to grow your business or a foreign worker wanting to develop a career in the United States. If you have any questions, please schedule a consultation with one of our attorneys at https://appointments.rnlawgroup.com.

By: Krystal Alanis

Krystal Alanis is a Partner at Reddy & Neumann, P.C. with over 10 years of experience practicing U.S. business immigration law. Krystal manages the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. Krystal guides clients from a variety of industries through the maze of the PERM Labor certification process and has handled thousands of PERM applications throughout her career. Krystal guides employers through the I-140 and Adjustment of Status process, and assists clients with temporary work visas. Further, she oversees the firm’s I-9 compliance team where she advises employers regarding Form I-9 Employment Eligibility Verification requirements and conducts internal audits of a company’s I-9 records, processes, and procedures. Additionally, Krystal represents clients in Form I-9 U.S. Immigration and Customs Enforcement (ICE) inspections (Notice of Inspection). Krystal successfully settled a claim with ICE over Form I-9 substantive paperwork violations that led to an 88% reduction in civil fines for her client.