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Possible Options For Persons Not Selected In The H-1B Visa Cap Lottery


What Is The H-1B Visa Cap Lottery?

The H-1 B visa is the visa category most commonly used to obtain work authorization for foreign workers in the US. With that visa, it’s one of the more useful visas as the criteria have the flexibility of appointing across the broad spectrum of occupations so it tends to be heavily used. Unfortunately, it’s subject to a court order restriction. We have only permitted 20,000 visas for persons who have completed a US Masters or a higher degree and 65,000 visas for other professionals. The H-1 visa quota season opens April 1st, this year it’s actually going to be April 2nd, Monday, April 2nd. In further USCIS regulation, USCIS will accept all H-1B petitions that arrive in the first 5 business days of April. Because they are going to receive more petitions than they have visa numbers available they allocate the numbers through a lottery process called the cap lottery.

Most years, people have a 50/50 chance of obtaining a visa. So toady, we are going to talk about what happens if someone doesn’t get a number what other options they might consider.

How Will An Employer Know If An Employee Has Or Has Not Been Selected In The H-1B Lottery?

With that, there is a lot of anxiety. We’ve worked hard, got these petitions and sent them in, how do we know if we are in line for a visa. The way we know is that after USCIS completes the lottery process which will take them, a good 5 to 6 weeks, they’ll start sending paper receipt notices where they will assign a case number and so if we get a case receipt notice then we know that we are in line to obtain a visa as soon as the case is approved which we expect to be the case. If we don’t get a receipt notice then the USCIS will usually return all the petition paperwork along with the filing fee checks. They are a little bit slower about that, so a lot of times, it’s middle of June or even start of July before we have answers on all of the cases.

Are There Any Other Options For Foreign Workers Not Selected In The H-1B Lottery?

A handful of people will have extra options. Most of the time, the solution is we have to wait and try again next year but we’ll always look to see if there is another possibility there. So the example of some of the options, in terms of the factors that apply would be what passport the person holds as some countries have additional visa options whether or not they are affiliated with the university or nonprofit research institution, there are some additional options there. Certain large multinational lawyers may have some additional options. Also, a person who is highly accomplished in his or her own right may have an additional option and lastly, sometimes through technology, people are able to sort something out through telecommuting from abroad.

Why Would Passport Nationality Matter?

With that, there are five what we call lucky countries that have additional options. Essentially they have H-1B analogs that fall outside of this normal quota system and that includes Canada and Mexico through the NAFTA treaty which as of today is still in place. The H1B1 category which is a subset of H-1B is available to persons from Singapore and also Chile. Lastly, Australia has the E-3 visa option. All 5 of those options share similarities with the H-1B. They are not exactly the same but if someone has a passport from one of those 5 countries, a lot of times we are able to find a backup solution for them.

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How Might A Foreign Worker Benefit From Having Ties To A University Or Non-Profit Institutional Sponsor?

Persons enrolled at a full-time university can obtain the F-1 student visa. So sometimes if someone’s
H-1B cap lottery doesn’t go down in their favor, that person will go back to school to pursue a Masters or a PhD degree that maybe they were thinking of anyway, it’s just that it may force that decision a little bit sooner and of course, with each degree a person completes, they may have additional OPT or CPT work authorization options. Of course, enrolling in school as a full-time student is expensive. That’s full-time tuition at the full rate usually. Another option, it’s less common but sometimes persons will have a backup job offer at a University or a non-profit research institutions and those institutes can also sponsor H-1Bs that fall outside of the caps. They are exempt from that system, they can get H-1Bs essentially at will but it will be a smaller number or percentage that have that option but it’s there.

Lastly, the J-1 visa for interns, researchers and some other subcategories there. Again, J-1 sometimes will apply to researchers and then also, with interns, that’s an option but with a caveat. So it’s common that a person will be here as an F-1 student, they’ve already been here for a couple of years, those persons aren’t going to be eligible to participate as a J-1 intern. Normally that’s just for persons who are currently abroad or must have been enrolled in school abroad within the most recent 12 months. So, again some specific requirements that apply there but sometimes there are options.

What Additional Options Might A Multinational Corporate Sponsor Have?

Large companies sometimes have a longer time horizon and if they found that a key person who has a special skill and they end up not getting an H-1B visa number but have a space for this person in an affiliate abroad. Sometimes persons are sent to an affiliate outside the US to work there for at least one full year and then try again next year for the H-1B or transfer back on the L-visa for which the requirement is that a person has to have worked abroad for an affiliate for at least one full year. If it is a manager or executive or a person with specialized knowledge. Another option and this one would be a little more limited is the E-1 or E-2 treaty investor or treaty trader option but that’s only available to certain persons who have a passport from countries with whom we have a treaty. So there is a list which is going to be up on the website going out with this matching article.

Those persons also sometimes have an option but again, the nationality of that company and the person you are sponsoring have to match. So a large Japanese multinational or South Korean multinational could only sponsor Japanese or South Korean workers. German multinationals could only sponsor a German. So it is somewhat limited but sometimes that’s a good throwback option as well.

What Additional Options Might A Highly Qualified Individual Have?

Sometimes persons are well qualified in their own right. So, for someone in the creative field, if they’ve won a lot of awards, how they were published documenting contributions to their field, they may be eligible for an O-1 visa for artists and people in the creative fields. For persons in the field of business, science or engineering, they normally will have a PhD, also publications where their work is published or perhaps other persons have written about them and their work and perhaps they have presented their work at conferences or reviewed the work of other persons in the field prior to those persons becoming published.. Those are all hallmarks of persons who may be eligible for the O-1 visa.

Are There Any Other Possibilities To Consider?

We’ve gone through a long list of options that there are some other out of the box visas that sometimes may apply. The other thing is that previously we would always try to have an H-1B visa in place before we would move forward with a green card option. Sometimes we just don’t have the luxury of that based on the reality of timings in this cap lottery and so some persons are eligible to move into the green card process. That’s case by case but that option is there and another one is to have a technology solution if the person is able to telecommute. The realities of that are somewhat difficult but it really just depends on the position.

Some positions require a physical presence for a person to be able to perform the role and in others as long as the person has a laptop and an internet connection, they are able to participate meaningfully and contribute to the company because immigration laws only apply to persons physically present here. Once they are outside the US those visa restrictions don’t apply.

For more information on H-1 B Visa Cap Lottery, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (619) 234-8875 today.

The Law Offices of Robert Nadalin

Contact Us Now for an Assessment of Your Needs - Call (619) 234-8875

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