Didn’t Win in the H-1B Lottery? Now What?
Relax. Every year the Alcorn Immigration Law team helps employers and foreign professionals devise immigration strategies that fit their needs. Those strategies may include a backup plan in the event that a job candidate fails to get an H-1B specialty occupation visa in the annual H-1B lottery in April.
Several other visa options exist for the candidates who qualify for an H-1B. Given the slim possibility of winning in the H-1B lottery, we typically explore the following alternative options.
Is the job candidate a Chilean or Singaporean national? If so, the candidate may qualify for an H-1B1 specialty occupation visa, which is an H-1B visa earmarked for citizens of Chile and Singapore. Thanks to special treaties the U.S. has with Chile and Singapore, professionals from these countries may qualify to receive H-1B1 visas on a fast-track basis.
Each year, 1,400 H-1B1 visas are reserved for Chileans and 5,400 are reserved for Singaporeans. Rarely are those visas completely exhausted.
The E-3 visa allows Australian nationals to live and work in the U.S. at a “specialty occupation” that requires specialized theoretical or practical knowledge, just like an H-1B.
In addition, E-3 visas require the petitioning employer to file a Labor Condition Application with the U.S. Department of Labor, as is required with H-1B petitions.
A maximum of 10,500 E-3 visas is available each year. E-3 visas may be extended every two years as long as the employer and the E-3 visa holder’s conditions of employment remain the same.
The L-1A visa enables a U.S. employer to transfer an executive or manager from one of its foreign offices to an existing U.S. office after that employee works for the company for 12 months or more.
Similarly, the L-1B visa enables a U.S. employer to transfer an employee with specialized knowledge from a foreign office to an existing office in the U.S. after that employee works for the company for 12 months or more.
What’s more, a foreign employer may send an L-1A or L-1B visa holder to set up an office in the U.S.
There is no annual quota on L-1 visas. Moreover, L-1A and L-1B visa holders may petition for permanent residency (a green card).
Does the job candidate have “extraordinary ability” in the sciences, education, or business? If so, the candidate might qualify for an O-1A visa to temporarily visit the U.S. to work in her/his field.
However, the bar for qualifying for an O-1A visa is higher than that of an H-1B. An employer must file a petition that either the candidate has received a major, internationally-recognized award, such as a Nobel Prize, or meets other criteria, such as receiving other awards and publishing scholarly articles.
Currently, USCIS does not cap the number of O visas that are available each year, unlike some other categories of temporary visas. Moreover, O-1A visas do not require the petitioning employer to file a Labor Condition Application with the U.S. Department of Labor, a requirement for H-1B petitions.
The initial O-1 petition can be approved for up to three years. O-1A visa holders may be eligible for indefinite extensions if the employer has a continuing need for the O-1A visa holder to engage in long-term assignments or projects. O-1A visa holder may also simultaneously apply for a green card.
Professionals from Canada and Mexico may come to the U.S. to work temporarily under a TN (Treaty National) visa. This visa was born out of the North American Free Trade Agreement (NAFTA), which created special economic and trade relationships between Canada, Mexico, and the U.S.
TN visas have fewer drawbacks than H-1B visas. TN visas:
- Do not have an annual quota.
- Allow for unlimited extensions as long as the employer and conditions of employment remain the same.
- Have no prevailing wage requirement.
- Do not require a U.S. Citizenship and Immigration Services petition.
TN visas are limited to 63 professions listed in NAFTA, but most of these jobs overlap with H-1B specialty occupations.
If the employer has an overseas office, can continue to pay the employee through the foreign entity, and the employee otherwise qualifies for an H-1B, the employee could come to the U.S. under a B-1 visitor for business visa to provide temporary professional services.
The foreign employee must convince immigration officials that she/he intends to temporarily stay in the U.S. The foreign employee must not abandon her/his home abroad. The maximum stay in the U.S. for a B-1 visa holder is six months. This would allow the foreign employee the opportunity to work for the employer before applying again for an H-1B.
Could the prospective employee enroll in a master’s or higher degree program? An F-1 visa allows the holder to enter the U.S. as a full-time student at an accredited college or university.
Some graduate programs require Curricular Practical Training (CPT)—work experience in the student’s field of study. Students may participate in practical training on a part-time or full-time basis. Full-time F-1 students enrolled in graduate programs that do not require immediate participation in CPT must wait one academic year.
We Can Help
The Alcorn Immigration Law team helps companies and individuals come up with a strategy in dealing with the H-1B lottery cap and alternatives. Contact us.
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