Options After Non-Selection in H-1B
April 07, 2023|
The H-1B Program
The H-1B program allows U.S. employers to sponsor and employ foreign nationals in various specialty occupations for a temporary period of six (6) years. A specialty occupation is one that requires a minimum of bachelor’s degree (or its equivalent) in a specific specialty and requires the theoretical and practical application of a body of highly specialized knowledge.
Prior to 2020, U.aS. employers were required to submit a complete H-1B cap petition for all their prospective foreign national employees. The United States Citizenship and Immigration Service (USCIS) would then conduct a randomized lottery selection to choose the H-1B cap petitions. The selected H-1B cap petitions would then be adjudicated by the USCIS and if found approvable, would be approved.
Since 2020, the USCIS has changed its H-1B cap selection process for the roughly 80,000 H-1B visas that are allocated annually. In 2020, USCIS introduced an electronic registration process for the H-1B cap petitions. U.S. employers are required to register their prospective foreign national employees in this registration process for a nominal fee. USCIS then conducts a randomized lottery from among the registrations received. U.S. employers can then file H-1B cap petitions for those prospective foreign national employees who are selected in this registration process.
In FY2022, USCIS had selected a total of 131,970 registrants against the 308,613 H-1B registrations received – which was approximately a 42% selection rate. In FY2023, USCIS had selected a total of 127,600 registrants against the 483,927 H-1B registrations received – which was approximately a 26% selection rate.
For FY2024, USCIS conducted its annual registration process between March 1, 2023, and March 20, 2023. While USCIS has not released the number of registrations received and the number of registrations selected, on average practitioners and employers are seeing a selection rate of just under 10%. While the USCIS may still conduct subsequent lottery draws (as it did for FY2022), the low selection rate essentially means that many foreign nationals currently in the U.S. on F-1 or other visas who have not been selected in the registration will be urgently seeking alternative visa and work authorization options.
Alternative Visa and Work Authorization Options
- Enrolling back in school
Foreign nationals who are currently on F-1 visas and are nearing the end of their OPT and/ or STEM extension may consider going back to school for another degree. It is important to note that foreign nationals are only eligible for one 12-month OPT and one 24-month STEM extension per degree level. Thus, if the foreign nationals have already exhausted their OPT and STEM extension based on a Bachelor’s degree, enrolling in another Bachelor’s degree program will not grant them a second OPT period. To be eligible for a second OPT period, the foreign nationals will need to enroll for a higher degree level (e.g: Master’s degree program)
- Enrolling in programs that allow curricular practical training (CPT) during the academic year
Certain universities run programs that allow students to gain real-world, industry work experience through work/ study internships, cooperative education programs, or practicums via sponsoring employers. These employers enter into cooperative agreements with the universities and the authorized students are allowed to work for these sponsoring employers during the academic year. This curricular practical training (CPT) should be an integral part of the university’s established curriculum.
- Country-specific visas for foreign nationals from countries holding trade agreements with the U.S.
Foreign nationals from certain countries may qualify for country-specific visas through their country’s trade agreements with the U.S. For example, Canadian and Mexican nationals may qualify to apply for the TN visa (through the United States – Mexico – Canada Agreement) if they are seeking temporary entry into the U.S. to engage in business activities at a professional level. Australian nationals are allowed to apply for the E-3 visa if they come to the U.S. to perform a specialty occupation role. Similarly, Singaporean and Chilean nationals may apply for an H-1B1 visa to perform a specialty occupation role. These visas are not subject to any cap and are available all year round, so there is no specific period to apply for them.
- Applying for dependent visa classification (and associated work authorization)
Foreign nationals whose spouses hold independent visa status in the U.S. may consider applying for dependent visas. For example, foreign nationals whose spouses are on H-1B, L-1, F-1, TN, J-1, or any other visa status may consider applying for dependent visas such as H-4, L-2, F-2, TD, J-2, etc. Some dependent visa classifications have work authorization incidental to status whereas some dependent visa classifications allow foreign nationals to seek authorization by applying for an employment authorization document (EAD). However, not all dependent visa classifications grant work authorization to foreign nationals. Regardless of work authorization, dependent visa status allows a foreign national to continue staying in the U.S. while looking for U.S. employers to sponsor them for an H-1B cap again.
- Applying for a visa in cases of extraordinary ability or achievements
Foreign nationals who possess extraordinary ability in their field of work – whether it be sciences, arts, education, business, or athletics – or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been widely recognized for those achievements may qualify for the O-1 visa classification. The evidence submitted should convince the USCIS that the foreign national has risen to the very top of their field of endeavor and is part of a very small peer group that is considered to be the most elite experts in their field of endeavor. While USCIS does not allow foreign nationals to “self-petition” for O‑1 classifications, in some situations foreign nationals could form a company that would, in turn, file their O-1 petition.
- Working for cap-exempt U.S. employers
It is worthwhile to note that not all U.S. employers are subject to the ‘quota’ or ‘cap’ for H-1B petitions. There are certain employers, including universities and related non-profit entities, non-profit organizations, and government research organizations that are exempt from the cap requirements. Such employers may be able to submit an H-1B petition for a foreign national at any time during the year, regardless of whether the foreign national was selected in the H-1B cap lottery. Although foreign nationals working for a cap-exempt employer may not easily change their employment and join a cap-subject employer, it does allow foreign nationals to be concurrently employed with a cap-subject U.S. employer in certain situations.
- Working for an affiliate of the U.S. employer for a year and entering the U.S. as an intra-company transferee
Some U.S. employers have affiliates, subsidiaries, and parent organizations outside the U.S. If a foreign national is employed at one of such qualifying organizations abroad for more than a year in a position of specialized knowledge or a managerial capacity, the foreign national may qualify for the intra-company transferee visa (L-1 visa). The L-1 visa classification also allows foreign employers to send a key employee to the U.S. (such as a manager or executive) to establish a new office in the U.S. when non existed before. This may be beneficial for smaller organizations that are just venturing out to establish their presence in the U.S. After the foreign national has completed one year of employment abroad in a specialized knowledge position or a managerial position, the U.S. employer may choose to transfer the foreign employer back to the U.S. under the L-1 visa.Relocating to Canada
Some U.S. employers may consider sending their foreign national employees to certain countries that have more favorable employment-based immigration frameworks, such as Canada. This allows the foreign nationals to continue their employment with the U.S. employer without disruption in Canada (including working in the same timezones, where possible) and consider sponsoring them for H-1B registration the following year or come up with alternative strategies in the meanwhile, including filing for L-1 petition after the foreign national has completed one year of employment in a position of specialized knowledge or a managerial position.
Our partner law firm Greenberg Hameed PC has many experienced attorneys who can provide customized immigration solutions for employers looking to relocate their employees to Canada. Greenberg Hameed provides full inbound Canadian immigration solutions and can work in tandem with our clients to ensure there is minimum disruption in their workflow as a result of their employees not getting selected in the H-1B lottery.
- Getting sponsored as an immediate relative of a United States Citizen
Immediate relatives of U.S. citizens can become legal permanent residents (LPRs) and get a green card if they meet certain eligibility requirements. Spouses of U.S. citizens, unmarried children under 21 years of age of U.S. citizens, and parents of U.S. citizens who are 21 years of age or older are considered immediate relatives. Foreign nationals who are married to or about to be married to U.S. citizens may consider getting sponsored by their spouses as an alternative to employment-based immigration petitions.
While it is certainly disheartening to not get selected for the H-1B cap registration, foreign nationals should consider applying for and exhausting all alternative visa categories that may be applicable in their case. While not all visa categories may be applicable in every case, experienced immigration attorneys can assist U.S. employers and foreign nationals come up with immigration solutions that allow U.S. employers to retain and nurture exceptional foreign talent and allow foreign nationals to continue staying in the U.S. and contributing to its growth and economy. To know more about any of the above categories of visas and whether they are applicable in a certain case, please reach out to our experienced attorneys.
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