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06.24.21

Options available when an employee is not selected in the H-1B lottery

BY , Courtney H. New

Here is an overview of the alternative visa options for those employees whose H-1B lottery registrations did not get selected in the annual H-1B cap-subject lottery.

Second chance at current year lottery

Those selected H-1B cap registrations for which an H-1B petition is not filed by the June 30 deadline will be re-allocated among the wait-listed registrations. As a result, it is possible that an H-1B registration not selected in the initial March lottery could still be selected later in the year, likely in the fall.

No action is required by an existing H-1B cap registrant to be considered under the “second chance” lottery. This will happen automatically. However, given the high number of non-selected registrations annually, the likelihood that an H-1B registration is selected in a “second chance” lottery, if there is one, is very low.

File an H-1B registration in next year’s lottery

There’s always next year. Employers can always try again but maintaining a foreign national employee’s employment authorization if they are in the U.S. in another status is a key consideration and often a challenge.

Additional program of study

Foreign nationals who were not selected in the H-1B lottery and who are approaching the end of their F-1 optional practical training (OPT) or the two-year STEM OPT extension may consider returning to school for another program of study.

Sometimes, this option allows an individual to obtain employment authorization based on curricular practical training (CPT). Generally, F-1 students will not be authorized to undertake employment during the first academic year of the program unless such employment is an “integral part of the established curriculum.” Eligibility for CPT is determined by the individual’s school and all off-campus employment must be approved by the school and reflected in the individual’s F-1 SEVIS record and Form I-20.

Employment with H-1B cap-exempt employer

The annual quota for H-1Bs does not apply to some employers, known as “cap-exempt” H-1B employers. These employers can submit H-1B petitions at any time and are not required to go through the annual lottery process. H-1B cap-exempt employers include:

  • Institutions of higher education
  • Nonprofit entities that are related to or affiliated with an institution of higher education (e.g., nonprofit teaching hospitals)
  • Some nonprofit or governmental research organizations

If a foreign national is employed in H-1B status with a cap-exempt employer, even part-time, he or she may be eligible to work concurrently for a cap-subject H-1B employer. However, a foreign national employed by a cap-exempt employer in H-1B status cannot transfer that H-1B status to a cap-subject employer and give up the cap-exempt employment.

E-1 and E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to receive an E-1 (treaty trader) or E-2 (treaty investor) visa based on significant trade with or investment in the U.S. by a qualifying U.S. enterprise (i.e., one that is ultimately owned by nationals of the treaty country). Employees must be coming to the U.S. to perform managerial, executive, or essential roles.

E-3 for nationals of Australia

Australian citizens may be eligible for an E-3 visa, which is very similar to the H-1B visa in terms of requirements. These visas are not subject to the same cap as H-1Bs.

H-1B1 for nationals of Singapore and Chile

Citizens of Singapore or Chile may be eligible for the H-1B1 visa, which is very similar to the H-1B visa in terms of requirements. These visas are not subject to the same cap as H-1Bs.

H-4 dependent status

If a foreign national is married to an H-1B visa holder who has an approved I-140 petition but who is unable to file his or her Adjustment of Status Application due to per country limits (typically citizens of India and China), then the foreign national, if in H-4 dependent status, is eligible for an EAD card.

L-1 Intracompany Transferee

The L-1 visa allows multinational companies to transfer their employees from their overseas offices to their U.S. offices (or to establish a new U.S. office).

Foreign nationals who are currently in the U.S. generally will not qualify for an L-1 visa. However, a U.S. employer with a subsidiary or affiliate abroad could potentially transfer the foreign national to the entity abroad for one year and then bring them back to the U.S. on an L-1 visa, provided the individual is a manager, executive, or possesses specialized knowledge.

L-2 dependent

If a foreign national is married to an L-1 visa holder, then the foreign national is entitled to L-2 dependent status. L-2 dependents are eligible for EAD cards.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are available to individuals who have extraordinary or unique ability in the sciences, arts, education, business, or athletics.

TN Visas for Canadian and Mexican Professional Workers

Citizens of Canada and Mexico, in certain occupations, can qualify for the TN visa classification. The TN visa is not subject to a cap and can be obtained either by applying at the border (for Canadians), filing at a U.S. consulate (for Mexicans), or by filing a petition with USCIS (for Canadians or Mexicans already in the U.S. in TN or another non-immigrant status).

Green card filing

Another option may be to pursue an employment-based green card. This may be a viable option if there is enough time to get through a PERM application, I-140 petition, and the issuance of an EAD associated with the I-485 Adjustment of Status application before the foreign national’s current employment authorization, such as OPT, expires. This option is often not available to individuals from back-logged countries, such as India and China.

Working Remotely from Abroad

In some cases, if no option is available to continue working from within the U.S., a foreign national may be able to continue employment with a U.S. employer from abroad.

While U.S. immigration law does not come into play for foreign nationals working abroad, employers and employees need to consult with an international tax law attorney licensed to practice in the locality of employment, as there may be tax and other local law implications to be considered prior to starting remote work.

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Author

Mary-Benham B. Nygren

Paralegal

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Author

Courtney H. New

Counsel

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