Every year for about 7 years, USCIS has been conducting a lottery to fill its H-1B quota. USCIS has set aside 85,000 H-1B visas out of which 65,000 are for regular H-1B applications, and 20,000 are for those beneficiaries who have earned a U.S master’s degree or higher. Every H-1B cap season, USCIS receives about 2 or 3 times the number set by this congressionally mandated cap. As a result, USCIS conducts a lottery to select those lucky 85,000. What about the ones who are not selected? Shruti Bali, a business immigration attorney at Pollack, Pollack, Isaac & DeCicco, LLP, will talk about several options that foreign nationals may have in case of non-selection in the H-1B lottery system.
If an H-1B candidate is already in the U.S. on OPT, he or she may be able to continue working and staying in the U.S. by extending their OPT if they qualify under the STEM program. If the candidate holds a STEM degree, it would qualify them for a 24-month STEM OPT extension. This extension must be filed prior to the expiration of the current OPT and the employer must be E-verified.
The first option is to try for an H-1B through a cap-exempt employer. The 85,000 quota is for cap-subject employers. There are plenty of employers not subject to this cap (i.e they are cap-exempt and allowed to sponsor a foreign national at any time during the year). A cap-exempt employer is defined as:
This option may also work if the foreign national is being placed at one of these institutions but not actually sponsored by a cap-exempt employer.
An L-1 Intracompany Transferee is available for those foreign nationals who have been employed by a company at their overseas office for more than a year either in a multinational executive/manager capacity or as a professional employee with specialized knowledge. Spouses of L-1 visa holders can get a work permit. This is a really good option for employers with overseas offices and can relocate their employees for a year.
Aliens with extraordinary ability in sciences, arts, education, business or athletics can qualify for an O-1 or P-1 visa. Our firm recently had a case where a foreign national with excellent credentials in the field of science did not get selected in the lottery. After evaluating his case, we decided to go forward with an O-1 and it worked for him. Obviously, this option may not work for everyone but it is worth looking into with an immigration attorney.
This is specifically designed for Mexican and Canadian nationals who are coming to the U.S. to work in one of the designated occupations by NAFTA. The process is slightly different for Canadian and Mexican nationals and it is not subject to a CAP.
For foreign nationals of certain countries with a treaty with the U.S., an E-1 or E-2 is an excellent option. The E-1 visa is for foreign nationals working for companies that have significant trade between the treaty county and the United States. The E-2 visa is for foreign nationals who want to invest in the U.S. Not to be confused with the EB-5 investment-based green card. Dependents of both E-1 and E-2 visa holders can obtain work permits.
To qualify for an E-3 visa, the foreign national must be a national of Australia and fill a position that qualifies as a specialty occupation. He or she must also possess the necessary qualifying credentials and have a job offer in the United States.
This option is optimal for foreign nationals who are not from India or China, and hence do not have a significantly long wait time before obtaining a green card. Their employers can directly sponsor them for permanent residence and bypass filing for an H-1B altogether. Whether the timeline would work for an individual candidate depends on a case-by-case basis and this option should be evaluated with an immigration attorney.
As you can see, there are options if you are not selected for the H-1B lottery. Please speak with an immigration attorney to thoroughly evaluate your case if you think one of these options could work for you. Call 800-223-2814 to schedule a phone call or video call through Zoom or Skype.
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