U.S. Citizenship and Immigration Services held its annual H-1B lottery this past weekend, and while official figures have not been released, it appears the odds of selection have decreased substantially this year. Some are reporting a 10% return. There are suggestions that USCIS may have received over 500,000 registrations.
What should you know if your petition wasn’t selected?
First, there is a chance more submissions will yet be selected. In the past few years, the agency has run additional lotteries for remaining spots through the fiscal year. The odds of selection there are even lower, but I expect this will happen again. Also, there is some suggestion that there may be multiple registrations for some, which will receive scrutiny from the agency. It was possible to have multiple registrations, but the sponsors had to be independent entities. We’ll see how it shakes out.
Second, employers and prospective beneficiaries to advocate for legislative reform. The annual quota figures haven’t changed in a long time, and reforms to the program are needed.
Now, here is a list of some other alternatives for those who weren’t selected:
- Seek employment with a “cap-exempt” H-1B employer. Certain employers are not subject to the H-1B cap and can make applications for H-1b employees throughout the year. Cap-exemption organizations include (1) institutions of higher education; (2) non-profit entities which are “related to” or “affiliated with” institutions of higher education; (3) non-profit research organizations; and (4) government research organizations. Generally speaking, these employers tend to be non-profit hospitals, universities and other educational institutions with ties to universities, and organizations engaged in research. It can sometimes be very complicated whether an organization is “related to” or “affiliated with” an institution of higher education, but a lot of time those employers that have these relationships are well aware. There usually is a written contract substantiating the relationship, or perhaps shared seats of governing boards.
- F-1 graduates of certain STEM college programs may be able to obtain an additional two years of optional practical training if their employment is approved by the Designated School Official and their employer is an E-Verify participant and willing to support a training plan.
- Some professionals may qualify for O-1 Extraordinary Alien status. O-1s are typically granted for 3 years and require a merits-based showing that a person has risen to the top of their field. Adjudications have been tougher on this category in recent years, but the criteria for qualifying allow some flexibility in demonstrating an applicant’s renown.
- There are country-specific options that can sometimes work. Australia has its E-3 visas, which are basically another kind of H-1B. Chile and Singapore have a special allotment of H-1B1 visas, which are also very similar to the H-1B.
- Certain employers can qualify new employees as E-1 or E-2 workers. The E visas are based on bilateral treaties between the United States and the respective country. There are many of these treaties. They are designed to encourage trade and investment with the U.S. A foreign owned country that has a U.S. business may qualify for either of these. The E visas can be used to employ Executives, Managers, and Essential Persons.
- The L-1 intracompany transfer visa is another status to look at sometimes. For someone who missed out on the H-1B lottery, it is a less likely option unless that individual is working outside the U.S., as an employee of a commonly owned and controlled company in the U.S. The L-1 requires at least six months and usually one year of employment abroad, before qualifying. There are many more details to this status, but let’s just say here that it is something to think about when there is a multinational organization.
- More school is sometimes the only option. It is sometimes possible to change courses of study, or enroll in a more advanced curriculum (e.g. Master’s, PhD).
- J-1 Exchange Visitor programs sometimes offer opportunities, but they are usually limited and have particular focus. Also, many of these programs have a two-year foreign residency requirement attached to them.
- Permanent residence petitions may be a consideration in some cases, but legal analysis is warranted. For example, for the right situation, it may be possible for a person to self-petition for an EB-2 National Interest Waiver. Timing and visa availability will always be concerns, in addition to eligibility. The Administration has said it will favor National Interest Waiver petitions submitted by STEM grads with Master’s degrees.
- Since we’re ticking off options here, there is an alternative universe of limited possibilities in family-based immigration that may warrant analysis.
Other possibilities that may apply. However, it can be tough to find a fitting alternative to the H-1B, which is part of the reason the H-1B is so sought after by employers and beneficiaries alike.