Alternatives to the H1-B Visa

More than 375,000 graduate students took classes in the United States in 2019 [1]. Most of them had the opportunity to do professional internships at the end of their studies and several aspire to emigrate to the USA. The path for them is clear: to be accepted into some graduate program and, after graduation, to apply for an OPT (Optional Practical Training, for its acronym in English). Later, if your performance is satisfactory, the same employer will prepare an application for you to receive an H-1B visa, with which you can work for a longer time than allowed by the OPT. Finally, after sufficient experience, aspire to have an immigrant visa – the famous greencard – and become a permanent resident of the United States.

If you plan to study a postgraduate degree with the intention of emigrating, do not trust yourself. US immigration policies are more restrictive than before, making the H-1B visa increasingly difficult to obtain, which means that your plan will be less likely to succeed. In fact, during this year 2020, President Trump has suspended the issuance of new H1-B visas. As a whole, the so-called H-1B “bridge” is risky today, so you must find alternatives if your goal is to develop your career in the United States. In this article we share a brief statistical account of the behavior of H-1B visas, and some options that you can work on before your graduate degree to achieve your dream.

Bridge H-1B: an uncertain route

The H-1B visa is granted to specialized workers and is non-immigrant. That is, if you obtain this visa, you will only be able to develop your work activities during the time it is approved, with the possibility of being able to renew it. Obtaining it is already a challenge in itself. That it is only for specific tasks requires that the occupation “requires the theoretical and practical application of a series of highly specialized knowledge and a university degree or its equivalent in a specialty” (USCIS, 2020).In addition, the employer must make the application to USCIS (US Citizenship and Immigration Services), which represents a direct cost for him, which is increased in the event that the application is denied. In fact, the rate of requests rejected at this point has increased in recent years from 6% to 24%: one in four applications are lost at this time.

Also, remember that only 65,000 H-1B visas are approved per year. How are they chosen? Once the application is accepted, you enter a lottery together with all those applicants for the visa. There will be randomly chosen 20,000 who obtained their degree in some American institution. The last 45,000 will be taken from all applications in general. The number of applications is so high that the selection went from 79% in 2013 to only 40% in 2016. This proportion may change substantially, due to the current protectionist policy that protects American workers.

The previous point makes the H-1B bridge even more uncertain: the cost of hiring a foreign candidate versus an American has increased during the current administration. Studies show that, in 2018, less than half of the companies in the US were willing to hire a foreign specialized worker, even after studying for a postgraduate degree in the country. “Companies have more and more reserves to accept the risk that sponsoring a foreign student represents” (Murray, 2018). This is because initial requests are increasingly rejected, especially for those who studied an MBA. At the consideration of the US immigration agency, a Master of Business Administration is a graduate degree so broad that it no longer represents a specialization by itself. Also, the OPT time that an MBA occasionally allows is not enough to develop the necessary relationship with an employer so that they can sponsor you.

Speaking of the OPT, this program has received some criticism from the current US administration, so there is uncertainty regarding the future of this type of legal stay. During the health crisis, it has been one of the few programs that have not been suspended, unlike its counterparts: H-1B, L-1 and J-1.

If your desire is to study a postgraduate degree, and thus aspire to this visa, we recommend the following three points that may increase, even marginally, the probability that your request will be accepted in the first moment:

  • STEM Graduate Studies: STEM graduate programs include a specialization in science, technology, engineering, and / or mathematics. The advantage of these master’s degrees is that they allow you a longer OPT space, up to an additional 24 months. This time should be adequate so that you can become more professional and make a career in the company where you will work during this period. This, in turn, gives the company more incentive to sponsor you, and you will show USCIS that you really are a necessary worker.
  • Study a postgraduate degree in the field in which you will work: You may find it compelling that an architecture firm hires a Master in Education, or that a service firm hires an MSc in Mathematics. However, for USCIS this relationship is not always obvious, and your initial request is in danger of being denied. It is important that if you aspire to an H-1B visa, you properly plan which postgraduate degree you will study and in which sector you plan to develop professionally. The proper combination of these two factors will be of great help to you
  • In an MBA, focus: Show that your MBA was not too broad or vague a category, to be considered specialized. In relation to the previous point, if, for example, you want to develop in the banking area, during your MBA make sure that all your electives are related to this topic in order to provide sufficient evidence that this is your expertise.

At this point, finally, keep in mind that only 65,000 visas are approved. Your application, no matter how good it is, will go through a random process, and the probability of being accepted is less than 40%. Hence the H-1B bridge is risky from start to finish, even this year, as already mentioned, the bridge was suspended.

Note: The maximum number of visas does not apply if your sponsor will be a research entity, public or private, a non-profit organization, or an institution of higher education. However, the initial petition process remains the same.

Alternatives to the H1-B visa

Alternative 1: O-1A

The O-1A visa is of non-immigrant quality, which is granted to those people who “demonstrate extraordinary ability supported by national or international recognition, to temporarily reside in the United States and work in the area where they have exceptional ability” (USCIS, 2020). You may ask yourself at this point: I don’t have a Nobel Prize, how can I aspire to an exceptional visa? To do this, keep in mind that USCIS is not an expert agency in all fields, so an O-1A visa is a very broad category. In fact, if you do not have any international recognition, such as the Nobel, you only have to accredit three of the following points to be a candidate, according to the immigration department:

  • Receive nationally recognized awards, or awards for excellence.
  • Membership in associations in the field of specialization, for which you need to have outstanding achievements to be admitted.
  • Material published in professional or commercial prints.
  • Original scientific, academic or business-related contributions that have a significant impact on the field of expertise.
  • Authorship of academic articles in specialized or high-marketing magazines.
  • High salary or remuneration that demonstrates exceptional ability.
  • Participation in a panel, or individually, in which you judge the work of others in the same field of expertise.
  • Critical or essential employee in distinguished organizations or establishments in the field of specialization.

Hence, depending on your field of study in the United States, you can fulfill these points prior to and during your stay, always strategically. Ideas for the above may be to associate, individually or through your university, with a publisher to publish specialized articles; or be on the lookout for calls for awards in a specific field in which you can participate and strive to win it. Exceptionalism, after all, is somewhat subjective, and you can take this to your advantage.

As with the H1-B visa, your employer must fill out an application in advance for your petition to be approved. In addition, the length of stay is initially one year, with the possibility of an extension of up to 3 years, in which you must work only in the field where you specialize. This should be enough so that, at some point, you can aspire to change your immigration status to temporary resident.

In this case, the disadvantages are, in the first instance, the need to provide substantial evidence to demonstrate your exceptionality. Also, if you plan to emigrate with your family, your family can stay in the United States, but without working.

Alternative 2: L-1

If you have a dream company, in which you want to work for a considerable time, and you have the possibility of moving, this visa is your best opportunity. The L-1 visa is granted to an employee who will transfer to a company in the United States from a subsidiary, parent, subsidiary, affiliate, or business branch of the same company abroad. In order to obtain it, you must have worked in a sufficiently important position (management: L-1A) or specialized (professionalization. L-1B), in the event that, if a US citizen took it, they could not perform the position in the manner ideal. In addition, you must have worked at least one year in that company outside the United States, during the last 3 years.

Although you need to invest time in working abroad, just like the O-1A visa does not have a lottery, and your success depends on submitting enough evidence for your application to be accepted and approved. Hence, this is an excellent option if you have a target company, and through it you can manage to develop professionally in the northern country. Initially, 3 years are approved, with the possibility of extensions of 2 years up to 5 years in the L-1B case, and 7 years in the L-1A case. It is also one of the visas that allow your family to work during your stay in the United States.

Update: Due to the global health crisis, President Trump has suspended the delivery of these types of visas, so there is uncertainty if by continuing with these types of policies, this visa will be permanently suspended or will be more difficult to obtain.

Alternative 3: E-2

Are you an entrepreneur? Did your MBA give you the weapons to develop your own business? The E-2 investor visa should be your alternative to the H-1B visa. This gateway, which does not go through USCIS, but directly at your embassy or consulate, is granted to those with entrepreneurship projects in the United States, and who plan to generate funds and jobs to improve the quality of life in this country. Although the documentation that you have to deliver is extensive, if your project is well founded and about to start operations, the probability that you have it increases considerably. This is because it will not go through USCIS, and the success of the application depends on an excellent interview at the consulate.

For this visa you must provide sufficient evidence to demonstrate that, if you are not the majority shareholder of the company to be created or created, you will act with sufficient control or professionalization, in such a way that your work is a sine qua non condition for the success of operations.. Also, if this is the case, your investment must be significant, ad hoc with the sector in which your company will operate. In addition to this, the plan must be solid, 5 years, and establish how you will generate added value for the United States. You can find more information about the specific requirements on the official page. In general, you will require proof of nationality, ownership documents, proof of sources of income, and evidence that the investment has already been substantial.

Note: This visa is only available to citizen investors from the following Latin American countries: Mexico, Argentina, Chile, Colombia, Costa Rica, Honduras and Paraguay.

Bonus for Mexicans: TN

Similar to the H-1B visa, the TN visa is granted to those temporary professionals who will work in a sector framed in the context of NAFTA (NAFTA). The process is similar to that of the H-1B visa, with the difference that in this case there is no lottery, that is, you will not go through a random process. In order to be a candidate for this visa, the job must require a specialized professional, with a degree from a university with official recognition and international validity. On the official USCIS website you can find more information about which degrees apply.