Plan B for H-1B?

What to do if your H-1B is not selected in the annual lottery this year

The U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for the 2016 Fiscal Year on April 1, 2015, and by all estimates, the number of H-1B applications this year will exceed the number of applications received last year. In the first week of April 2014, the USCIS received 172,500 H-1B applications for a total of 85,000 available H-1B visas (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).

Assuming the demand again exceeds the supply for available H-1B visas, all cap-subject H-1B applications received in the first five (5) business days of April will be included in the lottery. Meaning, the USCIS will continue to accept cap-subject H-1B applications until April 7, 2015, and will then hold the lottery to determine which ones are rejected and which ones will be considered for adjudication. Employers and prospective H-1B employees will nervously wait until the end of April 2015 (if the H-1B was filed with premium processing service) and possibly even the end of May (if the H-1B was filed with regular processing service) to find out if their H-1B was selected in the lottery.

While we may still be months away from knowing which H-1B applications were selected in the lottery, employers and prospective employees are encouraged to consider other options in lieu of an H-1B, especially in light of the small percentage of total applications that can legally be selected.  The following is a list of several alternatives to the H-1B:

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 his or her 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, 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. Additionally, beginning on May 26, 2015, certain H-4 dependents can also apply for work authorization if their spouse has reached a certain step in their own employment-based green card process.
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.
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 17 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.
6. Is the employee a budding entrepreneur interested in investing in the U.S.? If so, the E-2 Treaty Investor status may be an option.
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, a self-sponsored EB-1 (e.g. individuals with extraordinary ability, outstanding researchers, multi-national executive/manager), or other method? There is often a misconception that an individual must first acquire a non-immigrant status, such as H-1B status, before he or she can apply for lawful permanent residency in the U.S., but this is simply not the case.

We encourage all employers filing cap-subject H-1Bs and all prospective H-1B employees to prepare for the possibility of having their H-1Bs rejected and to have a plan B in place in such an event. May the odds be ever in your favor.

Please contact an attorney at Minsky, McCormick & Hallagan, P.C. to discuss alternatives to the H-1B.