Alternatives to H-1B Visas: What to Do if Your H-1B Visa is Not Selected in the Lottery
May 04, 2021|
By: Jacqueline Valle
The H-1B visa program allows United States-based companies to employ foreign workers for occupations that require highly specialized knowledge. These workers must possess a bachelor’s degree, or higher, in the specific specialty or its equivalent.
There are currently 85,000 H-1B visas available every fiscal year. United States Citizenship Immigration Services (USCIS) conducts a randomized H-1B cap lottery each year to select visa beneficiaries. Employers may file H-1B petitions for individuals who are selected in the lottery. If USCIS determines that there will not be enough approved H-1B petitions to meet the statutory cap by the end of the fiscal year, USCIS may do a second round of randomized selections. Foreign nationals that are not selected in the H-1B cap lottery are not eligible to receive an H-1B visa for that fiscal year. However, they may qualify for other nonimmigrant visa categories, as outlined below.
h-4 or l-2
A foreign national who lacks legal immigrant status can apply for H-4 or L-2 status if their spouse is a current H-1B or L-1 visa beneficiary. Individuals on L-2 status can apply for an employment authorization document (EAD) without employer sponsorship, which enables them to work for any employer. Individuals on H-4 status can only apply for an EAD if their H-1B holder spouse is the beneficiary of an approved I-140 petition.
H-4 and L-2 visas are tied to the spouse’s principal H-1B or L-1 visa, which means they are valid only if the principal visa is valid. H-1B visas are valid for up to three years, with possible extensions up to a maximum of six years. L-1 visas are valid for three years for initial requests, and two-year periods for subsequent extensions. L-1B visas are valid for a maximum of five years, while L-1A visas are limited to a total of seven years.
Individuals under H-4 or L-2 status who work with a valid EAD may be sponsored for a green card by their US employer under any of the employment-based categories.
This visa allows a US employer to transfer an employee with specialized knowledge that relates to the organization’s business from an affiliated foreign office to its US office. The employee must have worked for the foreign office utilizing their specialized knowledge for at least one year within the last three years. These employees are granted an initial stay of three years. A foreign company can also use this visa to send an employee to work at a new a US based office. L-1B employees will be allowed a maximum initial stay of one year if working at a new US office.
Extensions may be granted in increments of up to two years until the employee has reached the maximum limit of five years.
This visa allows a US employer to transfer an employee from an affiliated foreign office to its US office to work in a managerial or executive capacity. The employee must have worked for the foreign office as a manager or executive for at least one year within the last three years. These employees are granted an initial stay of three years. A foreign company can also use this visa to send a managerial or executive employee to initiate a new US based office. Beneficiaries will be allowed a maximum initial stay of one year if initiating a new US office.
Extensions may be granted in increments of up to two years until the employee has reached the maximum limit of seven years.
Individuals who qualify for L-1A status may also be sponsored for a green card by a US company under the EB-1C employment-based category.
An O-1 visa is granted to individuals that demonstrate extraordinary ability in the sciences, arts, education, research, business, or athletics. Additionally, it can be granted to those who have demonstrated extraordinary achievement in the motion picture or television industry. All O-1 applicants must demonstrate that they have been recognized nationally or internationally for their achievements.
O nonimmigrants can be admitted to the US with an initial stay period of up to three years, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. These beneficiaries are authorized to work only during the validity period of the petition.
Individuals who qualify for an O-1 visa may also qualify for a green card under the EB-1A or EB-1B employment-based categories.
Certain jobs that qualify for H-1B visas are also a fit for sponsorship under the J-1 exchange visitor visa. Some of these roles include:
- Professors and research scholars, for periods of three weeks to five years. This period can be repeated after a two-year residency outside of the United States.
- Physicians, for up to seven years.
- Trainees, for three weeks to 18 months. Individuals may repeat this period after residing two years outside of the US.
- Specialists, for three weeks to 12 months.
- Teachers, for up to three years. Individuals may repeat this visa after residing outside of the US for two years.
J-1 exchange visitors that are subject to the two-year home-country physical presence requirement may apply for a waiver. The waiver must be approved by the Department of Homeland Security before they can change status in the US or receive a visa in different category.
A prospective H-1B worker can remain in the US on F-1 status if they pursue additional studies, such as a master’s degree or PhD. Individuals are eligible to work for an off-campus employer directly related to their field of study under either Curricular Practical Training (CPT) or Optional Practical Training (OPT). CPT must be required under the degree program, can accommodate full-time or part-time work, and can last for 12 months or more. However, working full-time under CPT for a total of 12 months or more may affect eligibility for OPT.
OPT is available to F-1 students for up to 12-months after completing their studies. During the school year, individuals may work up to 20 hours per week on OPT if they have completed the requisite course of study.
Certain individuals may also be eligible for a 24-month STEM OPT extension if they earn a degree in science, technology, engineering, or mathematics (STEM), they seek a training opportunity related to the degree, and they meet certain other requirements.
Foreign nationals who are not selected in the H-1B lottery may consider seeking employment with cap-exempt employers, such as:
- Institutions of higher education.
- Nonprofit organizations affiliated with an institution of higher education.
- Nonprofit or government research organizations.
These organizations are not subject to the annual H-1B cap limitation, so they can sponsor H-1B workers without entering them into the lottery.
For help exploring alternate visa options and maintaining status, contact your trusted Chugh, LLP attorney.
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