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Apr 07 Attorney Articles

Not selected in this Year’s H-1B Cap Lottery? Here Are Alternative Options to Consider

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U.S. Citizenship and Immigration Services (USCIS) has completed the initial selection process to reach the Fiscal Year 2024 (“FY2024”) H-1B numerical allocations. All prospective petitioners with selected registrations have been notified that they are now eligible to file an H-1B cap-subject petition for the beneficiary named in the selected registration by June 30, 2023.

To provide some context, for FY2023, USCIS received nearly 500,000 registrations for an available 85,000 new H-1B visa numbers. While this year’s official data has not yet been released, we are anticipating upward of 600,000 total registrations for the same number of available visas, putting the chance of selection at less than 15%.

Prior to the implementation of USCIS’s inexpensive online registration system for FY2021, employers were required to prepare, file, and submit full USCIS filing fees for each individual they wished to sponsor in the annual H-1B cap process, creating a significant disincentive for abuse of the system from multiple submitted registrations per individual due to the high cost of sponsorship. For that reason, there were far fewer submissions and a chance of selection at 33% or more.

The most common pathway to the H-1B typically begins with a foreign national coming to the U.S. to pursue an undergraduate or graduate degree program as an F-1 student. Students pursuing degrees in STEM (Science, Technology, Engineering, and Mathematics) fields are granted up to 3 years of post-completion employment authorization. With three years of U.S. work authorization post-graduation, most F-1 students would have three attempts at the H-1B cap lottery and, due to the 1-in-3 chance at selection in the past, it was rare for an individual to not be selected for an H-1B visa by the end of their authorized period of stay in the U.S.

Things have changed vastly since the implementation of the online registration process. Today’s F-1 students face significant headwinds in their U.S. immigration journey due to the ever-decreasing chance at selection in the annual H-1B cap lottery. These individuals and their employers would be wise to consider alternative options early. Here are a few strategies for employers to consider when reviewing an individual’s long-term immigration strategy.

Option 1: Pursuing the Employment-Based Green Card Process

An employer can pursue the green card process for employees in F-1 student status. The most common employment-based green card process begins with the preparation and filing of the PERM labor certification, a process that can take 1 ½ – 2+ years from initiation of the case to approval. Once the PERM has been approved/certified, the employer can then move forward with filing the I-140 petition for alien worker, and the sponsored employee can apply for adjustment of status (also known as the green card) on Form I-485 if a visa number is available.

This strategy is most useful for individuals from non-visa backlogged countries (i.e., for individuals not born in India and, to a lesser extent, China.) If the process is started early enough, it could result in the individual receiving a green card prior to the end of their 3-year period of stay post-graduation.

It is important to keep in mind that the F-1 visa (and others, including the TN, E-3, J-1, etc.) is a single-intent status, meaning that there are additional considerations for students and employers to keep in mind when pursuing the green card process. You should review these issues with an immigration attorney to ensure compliance throughout.

Option 2: Country-Specific Visa Categories

There are several country-specific visa options available, including the E-3 for Australian nationals, TN for Mexican and Canadian nationals, and H-1B1 for nationals of Chile and Singapore.

Option 3: The O-1 Visa

The O-1 visa is for individuals with extraordinary ability in the arts, sciences, business, education, or athletics. To qualify for an O-1 visa, you must demonstrate extraordinary ability by sustained national or international acclaim, or a record of extraordinary achievement in the motion picture and television industry, and you must be coming temporarily to the United States to continue work in the area of extraordinary ability.

The O-1 is a very versatile visa option with a range of eligibility criteria. If you have published scholarly articles, been invited to judge the work of others, received media attention for your accomplishments, served in essential capacities with distinguished organizations, completed original work of major significance, and/or won notable awards, the O-1 visa could be a viable option to explore.

Option 4: The L-1 Visa

If you work with an employer that has offices outside of the U.S., the L-1 visa could be a long-term option to consider. The L-1 visa is for employees, who are employed with an entity outside the U.S. that is related to the U.S. entity. Individuals must be employed for at least one year in an executive, managerial, or specialized knowledge capacity abroad, and their U.S. role must be in an executive, managerial, or specialized knowledge capacity as well.

Option 5: Remote Employment from Abroad

Finally, there are solutions that do not involve U.S. work visas, including employing workers remotely from their home country or employing workers in a third country through a Global Professional Employer Organization (PEO), a growing industry that aims to meet the demands of today’s global world.

Whatever route you pursue, U.S. employers must plan ahead when employing foreign national workers. In light of the low selection chances in the H-1B cap lottery, foreign nationals may no longer rely on the traditional pathway from the H-1B to later pursuing U.S. permanent residency. Employers must be ready to get creative in their immigration strategies for key employees.

To discuss a thoughtful and creative visa and green card strategy for foreign national workers, please reach out to the Immigration Team at Higgs Fletcher & Mack LLP.