Alternatives to the H1B Specialty Occupation Visa

H1B season is in full swing, as US immigration lawyers across the global prepare to file their client’s petitions during the first week of April. It’s always an exciting time for law practices handling H1B visas for clients given the time sensitive petitions and uncertainty of being selected in the lottery. It can also be an extremely stressful period for employers and prospective employees for the same reasons.

The H1B visa is a temporary non-immigrant visa allowing a US employer to sponsor a foreign national for employment in the United States. The basic requirements dictate that the potential visa consultancy foreign employee hold a bachelor’s degree or the US equivalent (work experience can be substituted for a degree in certain circumstances), the employee will be working in a specialty occupation, and the employer will pay the employee at least the prevailing wage for the position (as determined by the location of the job).

There are 65,000 visas available each year for a start date on 1 October. Immigration attorneys must file their client’s petitions during the first week of April or they will not have a chance of being selected in the random lottery. The first 20,000 petitions received by the government for beneficiaries who hold a US master’s degree or higher are exempt from the visa cap. Additionally, certain non-profit companies and higher education positions are also exempt. The visa’s small petition window and selection cap can make it an unattractive option for employers. This is especially true for employers looking to hire a foreign national quickly.

US Citizenship and Immigration Services (USCIS) receives far more petitions each year than visas available. This necessarily results in the random lottery. For fiscal year 2017, the government received over 225,000 petitions – bringing a beneficiary’s chance for being selected in the visa lottery to approximately 25%. Unfortunately, these are not great odds, especially if the US company requires the foreign national’s unique qualifications or skills.

Throughout the years, employers have tried to develop ‘hacks’ for giving their beneficiary a better chance of being selected – including filing duplicate petitions for the same beneficiary. Fortunately, this practice is no longer allowed, and USCIS will reject all petitions filed by a company if they determine a duplicate petition was filed. What larger companies will do to increase their chances of having their H1B visas selected is to inflate their needs. The company would extend offers to more candidates than they need, in anticipation of approximately 75% of the petitions being denied. While this practice is not against the rules, it certainly harms the chances of other beneficiaries being selected in the lottery.

What are the alternatives to the H1B visa?

If one’s petition is not selected in the H1B visa lottery, or an employer requires a foreign national employee outside of H1B season, there are still alternatives to bring them to the United States. One of the most underused alternatives is the Special Business Concession visa, also known as the B1 in lieu of H visa.

As its name implies, the B1 in lieu of H visa allows its holder to enter the US with a B1 Business visa in place of a proper H1B visa. Specifically, the visa allows a foreign national to enter the United States to perform productive work for a temporary period of time. Like the H1B visa, the foreign national should have earned at least the equivalent of a US bachelor’s degree and should be coming to the US to work in a specialty occupation. Additionally, the employee must work on behalf of a foreign company and be paid by a foreign source (i.e. not paid directly from the US company).

The B1 in lieu of H visa is a good bridge visa to hold a beneficiary over until the next H1B lottery when another petition can be submitted on their behalf. The B1 in lieu of H visa is typically issued for a period of one (1) year. Its holder can then enter the US for a maximum period of six (months), which can be extended to complete the full year.

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