Plan B: What to do if your H-1B was not selected in the lottery?

As of March 27, 2021, the U.S. Citizenship and Immigration Services (USCIS)  has announced which individuals were selected towards the Fiscal Year 2022 H-1B lottery. It is unclear whether the selections will continue through March 31, 2021. Immigration law sets an annual limit on these coveted work visas, doling out only 65,000 regular H-1B visas and an additional 20,000 H-1B visas for those with a U.S. Master’s degree or higher. Historically, the demand for these visas exceeded the supply by a ratio of about 3 to 1, and despite the economic recession and pandemic, the demand again exceeded the available supply this year because these workers are highly specialized and often work in high demand STEM (Science, Technology, Engineering and Math) fields.

There May Be a Another H-1B Lottery This Year

For those who are not selected by March 31, 2021, there is still a possibility that they may be selected in future rounds if USCIS determines that they have unused H-1B visas to issue by September 30, 2021. In the first round, USCIS selects a sufficient number of registrations to meet the H-1B quota, but some of those H-1B applications may be denied, withdrawn, or never submitted for a variety of reasons, leaving behind a surplus of unused visas. Last year, USCIS conducted a second H-1B lottery on August 14, 2020, distributing thousands of unused H-1B visas.

Alternatives to the H-1B Visa

If an employee is not selected in any H-1B lottery this year, it is prudent to consider other options for working in the U.S. until such a time when the individual is selected in the lottery in subsequent years. For example, consider the following:

• 1.) Is the employee eligible for another form of work authorization? For example, would the employee qualify for an L-1A/L-1B for intra-company transferees, TN professional for Canadian/Mexican citizens, E-3 professional for Australian citizens, H-1B1 professional for Singaporean/Chilean citizens, O-1 for an individual with extraordinary ability?
• 2.) Does the employee have a spouse with their own independent nonimmigrant status in the U.S.? And would the employee be able to work in the U.S. as the dependent of that status? For example, H-4 spouses of an H-1B worker can obtain work authorization if the H-1B spouse has an I-140 approval. Additionally, spouses of a foreign national taking part in a J-1 intercultural exchange program or working as an E-1 Treaty Trader,  E-2 Treaty Investor, E-3 Specialty Occupation Professional from Australia, L-1A Intercompany Transferee Executive or Manager, or L-1B Intercompany Transferee with Specialized Knowledge have the ability to apply for work authorization.
• 3.) Is the employee interested in enrolling in school or extending their enrollment in school? F-1 students enrolled in pre-approved educational institutions in the U.S. may be eligible for Curricular Practical Training (CPT) and/or Optional Practical Training (OPT) work authorization, with many restrictions.
• 4.) Did the employee graduate from a U.S. university with a Bachelor’s degree (or higher) in a Science, Technology, Engineering or Math (STEM) field? If so, such employees may be able to extend their Optional Practical Training (OPT) work authorization for an additional 24 months (beyond the initial 12 months) if they work for an employer enrolled in E-Verify.
• 5.) Can the employee attend a training program to advance his or her career abroad? For example, the employee may qualify for a J-1 or H-3 trainee status. Please note that these trainee visas are not a form of work authorization and are very challenging in cases where the employee was recently on an F-1 visa.
• 6.) Is the employee a budding entrepreneur interested in investing in the U.S.? If so, the E-2 Treaty Investor status or the EB-5 Immigrant Investor green card process may be options.
• 7.) Does the employee qualify for lawful permanent residency (i.e. a green card) in the U.S. based on sponsorship by a family member (e.g. a US citizen spouse or parent), diversity lottery, an EB-1 (e.g. individuals with extraordinary ability, outstanding researchers, multi-national executive/manager) or EB-2 National Interest Waiver (NIW), or other method?
• 8.) Does the employee qualify for work authorization based on a form of humanitarian-based relief? For example, citizens of El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Venezuela, and Yemen may in some cases apply for Temporary Protected Status (TPS). Citizens of Venezuela may also be able to apply for Deferred Enforced Departure (DED). While uncommon in these cases, it is also worth exploring whether the employee may be eligible for asylum, VAWA, DACA, T visa, and U visa.

Will Biden’s Immigration Reform Bill Help?

Last month, President Biden introduced the U.S. Citizenship Act of 2021 to Congress, a comprehensive immigration reform bill that included relief for the undocumented, Dreamers (DACA), agricultural workers, and even employment-based immigrants and nonimmigrants. For example, the bill includes provisions eliminating numerical limitations on immigrant visas (i.e., green cards) for doctoral students in STEM fields, and allows all H-4 spouses of H-1B workers to apply for employment authorization document (EAD) cards, even without an I-140 approval.

The legislative process, unfortunately, is slow and unpredictable, and it is not currently known if any of these provisions will pass or when. Further, even if any immigration reform passes both chambers of Congress, the final law will likely contain many revisions and there is no way of knowing what they may or may not entail.

Is It Time to Consider Canada or Working Elsewhere Abroad?

In some cases, unfortunately, none of the options mentioned above will work and the employer must consider offshoring the employee in Canada, in the employee’s home country, or elsewhere abroad. For example, MobSquad is a Canadian company with a partnership with the Canadian Government that was founded as a solution to the perpetual H-1B problem and helps U.S. companies start virtual subsidiaries in Canada and enables their employees to obtain Canadian work permits in 4-8 weeks and permanent residency in Canada in less than a year. Other companies that already have a presence abroad may choose to send the employee to work at their affiliate or subsidiary abroad for a period of at least 1 year, opening the door for an L-1A or L-1B visa to later return to the U.S. Others may choose to simply return to their home country and work for the employer remotely or as a contractor. These options of course require careful consideration related to tax, employment, and corporate law in the country where the employee may work.

Please contact an attorney at Minsky, McCormick & Hallagan, P.C. to discuss alternatives to the H-1B. May the odds be ever in your favor.