April 24, 2018

Not Selected in the H-1B Cap Lottery?

The H-1B Visa for “specialty occupation” temporary workers is one of the more well-known categories in the U.S. immigration system. The main requirement for the visa is that the U.S. job opportunity be one that requires at least a U.S. bachelor’s degree or its equivalent. Information technology positions are especially well-represented among the petitions that are received by US Citizenship and Immigration Services (USCIS) each year. One of the main limitations to the category is that there is an annual “cap” of 65,000 H-1B visas, plus an additional 20,000 slots for individuals who have a master’s degree or higher from a U.S. university. In 2018, during the filing window from April 2-6, the government received just over 190,000 petitions for those 85,000 slots. On April 11, 2018 USCIS conducted an electronic lottery and began sending out receipt notices to the chosen H-1B recipients shortly thereafter. The petitions that were selected will be reviewed by USCIS adjudicators in the coming months.

If you submitted a petition and did not receive one of the coveted visas in this year’s lottery, then there may still be alternatives available for temporary employment, or for immigration to the U.S. as a permanent resident. This article provides a short overview of alternative categories.

Here are some other temporary visa categories to consider:

· H-1B “Cap Exempt” visa, for employers who are non-profit and affiliated with a college or university

· F-1 student OPT STEM extension for foreign student graduates who have not previously applied for a 24 month extension to their work authorization, and who graduated in a STEM field

· H-1B1 for citizens of Chile and Singapore and E-3 for citizens of Australia (dual citizenship counts)

· TN for citizens of Mexico and Canada (dual citizenship counts)

· E-2 visa for Treaty Investors or E-1 for Treaty Traders with citizenship from a qualifying country

· L-1A/B Intracompany transferee after working abroad for at least one year with a U.S. parent, affiliate or subsidiary company

· O-1A/B for individuals with extraordinary ability or achievement in their field

· The New International Entrepreneur Rule for collaboration with established U.S. “angel” investors

If none of the temporary worker categories is a viable option, then a final alternative might be to consider a move directly to U.S. Permanent Residency, or the “green card.” Here are some potential pathways:

· PERM-based labor certification and I-140 petition

· Employment Based “Extraordinary Ability” or EB-1 I-140 petition

· National Interest Waiver or Physician National Interest Waiver

· EB-5 Investor and employment creation petition

· Permanent residence through bona-fide marriage to a U.S. citizen or permanent resident

· Asylum based on a credible fear of persecution

Again, this article is meant to provide a brief overview of options that may be available. Individual situations may vary. If you are interested in a more in-depth discussion of the options, our office would be happy to schedule a consultation.

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