H-1B

Alternative options if your case is not chosen in the H-1B lottery

Published On
September 28, 2023
Read Time
4 Minutes
Author
OnBlick Inc

Upon the completion of its random lottery for the H-1B subject cap petitions, USCIS announced its selection of 85,000 petitioners out of over 275,000 registrations received for the Fiscal Year (FY). The selected petitioners have to submit the detailed petitions before the deadline on June 30, 2021. If these petitions go through without an RFE, the beneficiaries can start working in the U.S. from October 1, 2021.

If your petition is not selected this time, don’t give up hope as there’s still scope for the second round of selections. Also, several other work visa options open the door for individuals to work and live in the U.S. temporarily.

Here’s everything you need to know in this regard.

The second round of selections?

Although an adequate number of registrations have been selected to meet the H-1B quota this year, there are chances that some of them could be rejected, denied by the USCIS, or not even fully submitted by the sponsoring employer. This would mean a second round of selection to meet the remaining unused H1-B visas. USCIS can conduct future rounds anytime until September 30, 2021.

In simple words, this means that for those petitioners that were not selected in the first round of lottery conducted this March, there is hope as USCIS might issue thousands of unused H-1B visas in the second round.

Alternative Work Visa Options

Here are some alternative visa options if your petition is not selected in the H-1B lottery this FY.

Cap-Exempt H-1B visas

Some organizations have been approved by the government as H-1B cap-exempt companies. The employees in such companies can file their H-1B petition at any time of the year. This means that they do not have to wait till the next FY for the H-1B application process. For an individual to be considered for a cap-exempt visa, they need to have an employment offer from an institution of higher education (or related or affiliated nonprofit entities) or a nonprofit/government research organization.

To be categorized as cap-exempt, the prospective H-1B employee doesn't need to be directly employed by these institutions/organizations. If they will be hired by any employer, who will perform the majority of its work at such institutions could qualify for the cap-exempt H-1B classification provided the work performed should ‘predominantly further’ the normal, primary, or essential purpose of the qualifying academic institution of higher education.

Other Professional Specialty Worker Visas

H-1B1, TN, and E-3 are nonimmigrant visa categories that are similar to the H-1B visa. However, these are entitled to temporary professional workers from specific countries owing to specific trade agreements that foreign nations have signed with the U.S.

The H-1B1 is intended specifically for the nationals of Chile and Singapore. Up to 6,800 visas (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore) are set apart each FY from the H-1B cap of 65,000. The H-1B1 can be obtained at the U.S. Consulate/Embassy abroad without submitting a petition to the USCIS. Furthermore, Canadian and Mexican temporary professional workers may possibly search for the option of TN classification. The nationals of the Commonwealth of Australia qualify for E-3 temporary work visas. Like the H-1B1, E-3 visas are subject to an annual cap of 10,500 per FY. However, the E-3 candidate needs to obtain a Labor Condition Application (LCA) before the grant of the status.

It should be noted that while both H-1B1 and E-3 categories require LCA attestation from the Department of Labor (DOL), a TN visa is excused from this requirement. None of these categories are dual intent, unlike the H-1B, which is a dual intent visa. This simply means that to pursue employment-based green card petitions, foreign nationals employed on H-1B1, TN or E-3 might have to change their statuses to dual intent nonimmigrant visa categories such as H-1B, L-1, etc.

E category visas for Treaty Traders/Investors

To qualify for an E visa, a foreign national’s chances depend on the type of agreement, such as Bilateral Investment Treaty (BIT), Free Trade Agreement (FTA), or Treaty of Friendship, Commerce and Navigation (FCN), their country of citizenship has with the U.S. The two types of E visas are:

E-1 visa for Treaty Traders: To qualify for this visa, the foreign national entering the U.S. is required to be engaged in substantial trade which is international in scope, principally between the U.S. and the foreign state.

E-2 visa for Treaty Investors: This category requires the foreign national to develop and direct the operations of an enterprise in which the foreign national has invested, or is actively in the process of investing, a substantial amount of capital. The enterprise must be a bona fide enterprise.

Additionally, a “key employee”, such as the executives and supervisors, or persons whose services are “essential to the efficient operation of the enterprise” may qualify for an E-1/E-2 visa depending on the bilateral agreement between the foreign country and the U.S. Also, note that the nationals of a foreign country having an FTA may qualify in some cases for both an E-1 and E-2 visas. But, countries with a BIT allow only for an E-2 visa.

L-1 Visas for Intracompany Transferees

Organizations in the U.S. that have a related entity in other nations (parent, subsidiary, branch, or affiliate) may transfer managers, executives, and those with specialized knowledge to work for the U.S. entity on an L-1 visa. To be qualified for the visa, the employee must have worked for the foreign entity for at least one continuous year during their last three years of employment.

A benefit here is that, unlike the spouse of an H-1B visa holder, a spouse of an L-1 visa holder may take up employment in the U.S. after applying for and obtaining work authorization from the USCIS. If approved, there won’t be any specific restriction as to where the L-2 spouse may work.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are mostly reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  Though many individuals do not qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 can be considered an alternative for the H-1B visa. Besides the work authorization granted to these visa types, an O-1 and/or P-1 approval may create the base for the consequent application for an EB-1 category permanent residency.

An individual will be qualified for an O-1 visa if they possess an advanced degree, extensive publications/citations, awards in their field, and/or other evidence that they are one of the leading individuals in their field of work.

Filing for OPT Extension

F-1 students with degrees included on the STEM (Science, Technology, Engineering, and Mathematics) Designated Degree Program List can apply for an Optional Practical Training (OPT) Extension, a one-time 17-month STEM extension that grants students an Employment Authorization Document (EAD card). Current graduate students who did not get selected in the H1-B lottery may be eligible for Curricular Practical Training (CPT) or Optional Practical Training (OPT) work authorization. F-1 students who were not selected in the H-1B lottery process can apply for an OPT Extension and apply for their H-1B next year.

Filing for a Permanent Residency directly

For some employers and their foreign workers filing for an employment-based visa, a green card may be a feasible option. Typically, employers seek to hire a foreign worker on H-1B status and then sponsors for a green card. However, it is also possible to apply for a green card directly, without going through the H-1B visa option. The probability of this option is higher for foreign workers who have a Master’s degree OR a Bachelor’s degree and 5 years of experience. Regrettably, this direct green card filing option may not be feasible for Indian or Chinese nationals due to the significant waiting time (five years or more) for a visa number to become available.

Obtaining a dependent visa

There is also an option of legally marrying an H-1B visa holder, L1 holder, or a U.S. citizen to obtain a dependent visa. This can help the individual to have more time and explore other options. However, immigration experts caution prospective employees to pursue this option only if they intend to live with the person they marry.

Final Thoughts

Though many foreign citizens rely on the H-1B visa to work and live in the U.S. on a temporary basis, there are a few other visa options worth considering when the former is not available. These options let the foreign nationals fulfil their dream of working either in the country for the U.S. employer or to continue that employment while residing abroad. OnBlick can be your immigration & HR compliance partner that guides you with all the formalities involved in the process.

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