Yesterday, USCIS announced that it received sufficient registrations during the initial H1B registration period to meet both the regular and US master’s cap for the upcoming fiscal year. Those lucky enough to have been selected have received notification via their attorney/employer myUSCIS account and will have a 90-day period to file an H-1B petition with USCIS. Congratulations!
USCIS has not released numbers, but based on the acceptance percentage rate this year vs. prior years, its crystal-clear demand was unprecedented. This means, most cap candidates did not receive a selection notice and are today discouraged and wondering what now!? I get it. As a new solo practitioner, I was hopeful that at least 20-30% of my submissions would be selected, but I opened my practice March 6th and filed only a handful and am looking at .08% selection rate!
It's obvious the lottery system is not working for the US businesses that file to sponsor these workers; nor it is working for foreign nationals who have job offers from US businesses. Below, I’ve brainstormed a list of alternatives worth considering for all those ‘unlucky’ cap candidates and their employers.
- Additional USCIS Selection Rounds: this is possible, but unlikely. In 2020 and 2021, USCIS conducted two and three selection rounds. In 2022, there was no additional rounds.
- OPT and STEM OPT: If you’re currently in F-1 status and working pursuant to OPT, you may continue to work until your EAD expiry. If eligible for the 24-month STEM extension, that will allow for additional time to continue to work and re-apply in subsequent H-1B cap selections. However, given the cap selection rate, it’s advisable to consider multiple alternatives. There’s no guarantee you will be selected even if you get 3 tries in the H1B lottery system. So, keep reading!
- Cap-Exempt Employer [with or without concurrent Cap Employment]: If you land a job at a US institution that qualifies as ‘cap-exempt’, you could remain in the US to work. So what employers are exempt from the H-1B cap? These are:
o Institutions of higher education (i.e. Universities);
o Non-profit entities ‘related to’ or ‘affiliated with’ institutions of higher education;
o Non-profit research organizations;
o Government research organizations.
Once on a cap-exempt H1B work visa, if you ever want to move to a cap-subject employer, you would need to first secure a H1B cap number in a subsequent year. In other words, you can’t move from a cap-exempt employer to a cap-subject employer without first being selected in the H-1B cap lottery. However, there is an important exception for concurrent work. USCIS will allow an individual employed at a cap-exempt institution to seek secondary employment with a private (cap-subject) employer on a concurrent basis.
- Another Degree Program: If you’re in the US and have already graduated and nearing the end of your EAD validity, you could consider enrolling in another program. If you would like to apply for CPT (curricular practical training), it’s important the next degree program is at a higher degree level. So, if you already have a US master’s degree, then you should enroll in a US PhD program if you want to participate in practical training and hope to change to another status down the road.
- Green Card Sponsorship: Your employer may be willing to start the sponsorship process for your Green Card. In most cases, the US employer must first obtain a labor certification from the US Department of Labor (DOL). Bear in mind that the labor certification process is taking at least 14-16 months to complete. DOL processing time is extremely long, but if you have time left on your OPT/STEM OPT or have an employer that is willing to allow for some remote work, this is a useful option to avoid H-1B cap selection obstacles. Note, this strategy is most useful for individuals who are nationals from any country except India and China. Unfortunately, the significant backlogs for immigrant visas for Indian and Chinese nationals make this option impractical for foreign nationals from these countries.
- Remote Work Abroad: If your US employer accepts, you could work from your home country or another country where you have (or can obtain) work-authorization. Employers are increasingly open to remote-work and, depending on the nature of your work and your US Employer’s policies, this could be a conversation worth having. Additionally, depending on the US Employer’s corporate structure, remote work abroad in certain positions (managerial, executive, or specialized knowledge) could lead to qualification for future work authorization as a L-1 intracompany transferee in as little as 12 months.
- Extraordinary Ability O-1A Visa – This category is suitable for those with ‘extraordinary ability’ and achievements in their field (science, arts, education, business, or athletics). Applicants do need a sponsor (employer or agent) and must demonstrate a one-time achievement at the caliber of a Nobel Prize or satisfy at least 3/10 criteria which include lesser nationally or internationally recognized prizes/awards, published materials, participation as a judge of the work of others in the field, and authorship, to name a few. If successful, this could lead to a EB-1 Green Card, allowing you to skip the long labor certification process.
- L1 Intracompany Visa – This could be a viable option for multinational companies seeking to employ a manager, executive or employee with specialized knowledge in the United States. It does require a sponsoring employer that maintains both a foreign and US presence and the foreign and domestic entities must prove a qualifying relationship (parent, branch, affiliate, or subsidiary). Additionally, the foreign worker must have worked for the multinational company for at least 1 year in the past 3 years in a qualifying position (manager, executive or employee with specialized knowledge).
- Nationality-Specific Non-Immigrant Visa Options – If you are an Australian national, check out E-3; Canadian or Mexican citizens can see if they qualify for TN status; Singaporean or Chilean citizens can skip USCIS and apply directly at a Consulate abroad for an H1-B1 visa. Finally, if you are a national of certain countries with qualifying commerce and navigation treaties with US, there’s non-immigrant visas for treaty investors (E-1) and treaty traders (E-2). Check here for your country. If you have the right nationality, there’s possibilities.
If you are unsure what to do next, which visa to apply for, or if you are even eligible, speak with an immigration lawyer who will take time to explain it all and break it down to bite-size pieces. I understand the frustration of the US immigration system and am here to assess and advise on possibilities. I’m taking new clients and can be reached at sarah@peludimmigration.com.
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