H-1B Cap Alternatives: Visa Options for the Healthcare Industry and Biotechnology Companies

The H-1B visa is among the most popular working visas in the U.S. for individuals filling professional (degree-requiring) positions.  Most H-1B visas are subject to an annual quota or “cap.”  These are often referred to as H-1B cap visas.  Because demand exceeds the number of available visas, USCIS conducts a lottery to select which applicants can have their visa application processed.  As has been the case for numerous years running, this year’s H-1B cap has been filled, and new H-1B cap visas won’t be available until the start of the next fiscal year, October 1, 2023.  Employers who do not have the option of employing international talent in L-1 visa status (reserved for multinational companies) or in E-1/ E-2 visa status (reserved for certain foreign-owned companies seeking to employ international talent having the same country of citizenship as the company’s ownership), are left wondering – are we really out of options until October 1, 2023?

The good news is, employers in the healthcare industry and biotechnology industry have several alternatives to H-1B Cap visas.  Here are key visa sponsorship options to consider.

E-3 visa and H-1B1 visa
Available only to citizens of Australian (E-3 visa), Chile (H-1B1 visa), and Singapore (H-1B1 visa) by treaty, these visas have very similar education requirements to the H-1B visa and are reserved for professional positions. As many job candidates in the healthcare and biotechnology industries have a least a Bachelor’s level education, and many jobs in these industries require the same, the E-3 visa and H-1B1 visa are generally good alternatives for Australian, Chilean, and Singaporean nationals working in these industries.   Examples of eligible positions include physicians, IT professionals whose position requires a bachelor’s degree, engineers, pharmacologists, scientific researchers, postdoctoral fellows, registered nurses requiring a bachelor’s degree, therapists, and clinical lab scientists, among others.  While the E-3 and H-1B1 visa categories are also subject to an annual quota, the quota has never been reached.

TN visa
Available only to citizens of Canada or Mexico pursuant to the U.S. Mexico Canada Agreement (USMCA), these visas are available for a specific list of occupations, many of which include occupations in the healthcare and biotechnology industries. Most but not all of the designated occupations require a bachelor’s degree. Examples of eligible positions include registered nurses, computer scientists, mathematicians/Statisticians, Research Assistants, Scientific Technicians, Medical Lab Technologists, Occupational Therapists, Physical Therapists, Pharmacists, Pharmacologists, Teaching or Research Physicians, Psychologists, Biologists, Chemists, Biochemists, Epidemiologists, Geneticists, Dentists, Computer Systems Analysts, Engineers, and Teachers (college and university level), among others. The TN visa is not subject to an annual quota.

F-1 visa, STEM extension
The F-1 visa is a student visa. After students graduate from college or university, they are generally eligible for a 1-year work card to gain practical training in their field of study. Often, employers apply for an H-1B visa for F-1 students, but if the F-1 visa holder is not selected under the H-1B cap lottery before their 1-year work card expires, there may be more options for students with a U.S. degree in Science, Technology, Engineering, or Mathematics (STEM).

Specifically, these students may be eligible for a 2-year extension of their work card (for a total of 3 years of work authorization).  This allows employers in the healthcare industry and biotechnology industry to enter the employee in the H-1B cap lottery for three consecutive H-1B cap lottery seasons, thereby increasing their chance for selection.

Employers who wish to sponsor a STEM extension for an F-1 student must enroll in the online E-Verify employment verification system.  Examples of STEM eligible positions include IT professionals (such as computer programmers, computer scientists, network and system administrators, computer engineers, etc.), environmental scientists, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), postdoctoral fellows, pathologists, and clinical lab scientists, among others.  The STEM extension is not subject to an annual quota.

O-1 visa
This visa type is available to those who have reached a level of sustained acclaim and distinction in their field. Factors for O-1 consideration include original and significant contributions to their field; publication of scientific articles in peer-reviewed journals; media attention or work being highly cited; high salary or other compensation; manuscript review or other review of peers; national or international professional awards; memberships in selective professional organizations; and leading/critical roles for a distinguished organization.  This visa category is generally available to accomplished scientists (principal scientists and associate scientists, research scientists or research associates, postdoctoral fellows, biologists, biochemists, chemists, epidemiologists, etc.) as well as physician-scientists (including residents and fellows), though other professions can also qualify.  The O-1 visa is not subject to an annual quota.

J-1 visa
This visa type has several sub-categories and is available for temporary/term employment to those individuals who are early in their careers and who require training or practical experience (such as interns or postdoctoral fellows), or to those more established in their careers visiting for a finite period (such as professors, visiting scholars, or visiting fellows).  In addition, certain J-1 students enrolled in a U.S. college or university are also eligible for work authorization (academic training) for up to 18 months after graduation, with STEM degree holders eligible for a total of up to 36 months of academic training.  Examples of J-1 student STEM positions include IT professionals (such as computer programmers, computer scientists, network and system administrators, computer engineers, etc.), environmental scientists, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), and postdoctoral fellows, among others.  Notably, physicians in medical training (such as medical residents and fellows) may also be sponsored under the J-1 visa category.  Depending on the specific type of J-1 visa, the educational requirements differ (J-1 intern/trainee visas often require a foreign degree or enrollment in a foreign college/university) and the period of allowable maximum stay differs as well (ranging from 12 months to seven years).  The J-1 visa is not subject to an annual quota.

Cap-exempt H-1B visa
Not all H-1B visas are subject to an annual quota – these are called cap-exempt H-1Bs. In general, an employer is exempt from the quota if they are an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization.  Organizations such as non-profit teaching hospitals (affiliated with a college or university) can thus sponsor professionals without the visa being subject to the H-1B cap.  Importantly, for-profit institutions that will physically employ a professional at a cap-exempt institution (such as a non-profit teaching hospital) can sponsor the professional without the visa being subject to the H-1B cap.  This can benefit private practice physicians, who often physically perform their work at non-profit teaching hospitals.  Physicians serving in a health professional shortage area (HPSA) may also be eligible for a cap-exempt H-1B visa.  In addition, if a cap-subject employer wishes to concurrently hire a professional who is working pursuant to a cap-exempt H-1B visa, it may do so without the visa being subject to the cap, as long as the professional also maintains the cap-exempt employment in H-1B status. (A common scenario is when a visa candidate has a part-time job in H-1B status with a cap-exempt employer and another part-time or full-time job in H-1B status with a cap-subject employer).  Examples of eligible positions include physicians, IT professionals whose position requires a bachelor’s degree, engineers, pharmacologists, scientific researchers (such as biologists, biochemists, chemists, etc.), postdoctoral fellows, registered nurses whose position requires a bachelor’s degree (very limited), physical therapists, speech therapists, occupational therapists, and clinical lab scientists, among others.  While cap-exempt H-1B visas are not subject to an annual quota, they are subject to the general H-1B maximum work period of six years (some exceptions apply).

Schedule A immigrant petition
While this is not a temporary work visa, and is instead a green card-based petition, it can provide an option for employers seeking to hire nurses who are not eligible for the TN visa (because they are not Canadian or Mexican citizens), and whose position is not eligible for H-1B sponsorship due to the position not requiring a bachelor’s degree. Due to a national shortage of nurses, the government allows for an expedited green card process (Schedule A process) that allows the employer to bypass the typical labor market test required for many green card-based petitions.  Schedule A petitions do not provide an immediate hire date as temporary visas often allow, but these applications can facilitate hiring within a one-to-two-year period for nurses waiting outside the U.S. for employment. Physical therapists are also eligible for a green card process through Schedule A but may have an immediate hire option of an H-1B if the employer qualifies for a cap-exemption listed above.

U.S. immigration benefits available under our current statutory scheme often fall short of meeting the needs of U.S. employers.  Fortunately treaties granting special visa options for citizens of Canada, Mexico, Australia, Singapore, and Chile, along with a domestic policy focused on retaining STEM professionals, has created a wide variety of visa options for professionals in the healthcare and biotechnology industries.  Given these alternatives to the H-1B cap visa, employers in these industries are better-positioned to hire, or continue to employ, international talent.