Not Chosen in this Year’s H-1B Lottery – Now What?

Within the first week of the opening of the April 1, 2014 H-1B filing season, USCIS received a sufficient number of H-1B cap-subject petitions to overwhelm the annual H-1B quota—172,500. For the first time in H-1B numerical cap history, losers outnumbered the winners in the annual lottery. Because the cap is currently set at 85,000 (65,000 H-1B regular cap and 20,000 H-1B Master Degree) there are a total of 87,500 professional workers who will not be able to work in H-1B status for the companies which sponsored them.

That means that USCIS will be refunding big bucks in filing fees. The average filing fee that will be refunded to each of the 87,500 rejected workers is approximately $2,000, which means the government will be refunding about $175 million. The wisdom of our government refunding this sum, while turning away highly skilled professional workers amidst a chorus of disapproval from the nation’s largest tech employers is something that is debated often in the halls of Congress.  

Of more immediate concern to our readers are the back-up options if an H-1B applicant’s application was not selected in this year’s lottery. Below are seven alternatives that this year’s ‘unchosen’ lottery participants can consider. Note that the list is not exhaustive of all visa types and scenarios under which an employee may be legally employed.

L-1 Intracompany Transferee. This visa category allows foreign-based companies to transfer their employee to the U.S. office to work in (or establish) a U.S. office. The employee must be an executive, manager or “specialized knowledge” employee. “Specialized knowledge” is defined as expertise related to the company’s product, service, research, equipment, techniques, management or operations.

TN for Canadian and Mexican Professional Worker. Citizens of Canada and Mexico coming to work in the U.S. in one of the designated professional occupations (and possessing the requisite education or experience) may be eligible for the TN visa. An application for the TN visa can be made by applying at the border (for Canadians) or by filing a petition with USCIS.

E-2 Investor. This visa allows nationals of certain treaty-participant countries to make an investment in a U.S. business or start their own, then come to the U.S. to manage and direct the investment. The amount required for investment generally varies depending on the industry, with more capital-intensive industries requiring a larger investment than service-based entities.  

Cap-Exempt H-1B.  Employers that are not subject to the numerical cap are allowed to file H-1B petitions at any time.  A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or (3) nonprofit research organization or a governmental research organization.   

B-1 in lieu of H-1B Worker. This somewhat obscure visa category applies to professionals employed outside the U.S. by a company that needs the worker to temporarily travel to the US to perform specialty occupation services or training. The employee in this case cannot receive any compensation from a U.S. source except for living and travel expenses.

O-1 Extraordinary Ability Worker. Available to individuals of extraordinary ability or achievement in the sciences, arts, education, business or athletics who have sustained national or international acclaim and recognition. Individuals approved in this classification often have a strong case for a later application for EB-1 permanent residency. 

F-1 Student Options.  A student in the U.S. pursuant to OPT whose H-1B has not been chosen under the cap is not eligible for a cap-gap extension and must stop working at the conclusion of OPT authorization. In addition to changing status to the nonimmigrant categories described above, the student is left with the following options: 1) A STEM OPT extension can be sought if the employer participates in e-verify and the student’s degree is in a science, technology, engineering, or math discipline; 2) The student can return to school to seek a new degree if permitted by their school’s international student coordinator; or 3) The student can depart the US and return to their home country. At the end of the OPT period, the student has a sixty day grace period during which the student is not authorized to work but is authorized to remain in the US to conclude their affairs and pursue one of the options above.

If immigration reform is not enacted by next year, FY2016 H-1B cap filings are also expected to overwhelm the annual cap. Meanwhile, individuals seeking U.S. immigration status today who believe that one of the above-mentioned categories may be applicable, should discuss their matter in detail with an experienced immigration attorney.