With U.S. Citizenship and Immigration Services (USCIS) recently completing the H-1B Cap lottery selection for the 2021 fiscal year, a top priority for our clients is exploring alternate employment-based visa options for employees who were not selected. Many of these options are based on specific criteria and circumstances, including the employee’s country of citizenship, university graduation date, and whether they possess “extraordinary ability.”
Here is an overview of nonimmigrant visa options that may be worth exploring for your employees:
F-1 OPT STEM Extension: For employees currently employed via an OPT Employment Authorization Document (EAD) on F-1 status may be eligible for a 24-month extension of their OPT work authorization if their completed degree, as well as the proffered position, is in a STEM field. If they are not, one option may be to re-enroll in a program with CPT.
- If your spouse is currently on a F-1 visa, you may be added as a F-2 dependent. However, please note that these visas are not work authorized.
Free Trade Agreement Visas:
TN Visa: Based on the North American Free Trade Agreement (NAFTA), this option may be available for citizens of Canada and Mexico employed in one of several professions specifically covered by NAFTA regulations. The minimum qualification is typically a bachelor’s degree in a field directly related to the profession or a specific license or credential for practicing that profession.
- If your spouse is currently on a TN visa, you may be added as a TD dependent. However, please note that these visas are not work authorized.
E-3 Visa: Citizens of Australia working in a specialty occupation may be eligible for E-3 visa status. As is the case with H-1B visas, a specialty occupation is one requiring, at a minimum, the theoretical and practical application of a body of knowledge within a professional field and a bachelor's degree (or its equivalent) relevant to the position.
- If your spouse is currently on a E-3 visa, you may be added as a E-3D dependent. Dependents can work by applying for an Employment Authorization Document (Form I-765)
H-1B1: Citizens of Chile and Singapore may be eligible for the H-1B1 variant of the H-1B program. Similarly to the H-1B, H-1B1 candidates must be employed in a specialty occupation and must typically possess a bachelor’s degree, though some requirements do differ from the H-1B criteria. H-1B1 status is granted in one-year increments.
- If your spouse is currently on a H-1B1 visa, you may be added as a H-4 dependent. However, please note that these visas are not work authorized.
J-1: This visa allows a company to hire a candidate under a J-1 Trainee or J-1 Intern program. Eligibility for specific programs vary depending on the sponsoring organization and the nature of the program.
- J-1 Trainee: A trainee participates in a work-based training program and must possess a college degree or professional certification and at least one year of related work experience OR five years of work experience in his or her occupational field. May be approved for up to 18 months.
- J-1 Intern: An intern performs a pre-defined function within a sponsoring firm and must currently be enrolled in an academic institution outside of the U.S. or have recently graduated from one. May be approved for up to 12 months.
- If your spouse is currently on a J-1 visa, you may be added as a J-2 dependent. Dependents can work by applying for an Employment Authorization Document (Form I-765)
O-1 Person of Extraordinary Ability: The O-1 visa is reserved for those who have distinguished themselves through extraordinary achievements in the areas of science, art, education, business, or athletics. It allows foreign nationals with demonstrated national or international recognition in these fields to work in the United States for a short-term basis.
- If your spouse is currently on a O-1 visa, you may be added as an O-3 dependent. However, please note that these visas are not work authorized.
L-1 Intracompany Transferee: If your company has entities overseas, and your employee has been in a managerial or specialized knowledge position for 1 full year within the past 3 years, they may be eligible for a L-1A or L-1B visa.
- If your spouse is currently on a L-1 visa, you may be added as a L-2 dependent. Dependents can work by applying for an Employment Authorization Document (Form I-765)
E-2 Treaty Investor: If your company is wholly owned by a country with which the U.S. maintains a treaty of commerce and navigation, and you are also of this nationality, you may qualify for the E-2 visa. Please see the U.S. Department of State's Treaty Countries for a current list of countries that meet this criteria.
- If your spouse is currently on a E-2 visa, you may be added as a E-2D dependent. Dependents can work by applying for an Employment Authorization Document (Form I-765)
B-1/B-2, Temporary Business/Tourism Visitor: if your employee’s current status is expiring soon, one option for them to remain inside the country is filing a change of status to B-1/B-2, visitor for business or tourism. However, it is important to note that the B-1/B-2 is not work authorized.
Green Card: If your spouse is a U.S. citizen or Legal Permanent Resident, or your company is willing to sponsor you, you may be able to adjust status. However, please note that this process can take several years, and is not immediately work-authorized.
Check with legal counsel to see if any of these options apply to your situation. Many factors determine which visa you may be able to apply for and it is recommended to get advice before pursuing lengthy applications that can cost you time and money.
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.