Employers encouraged to consider additional options after H-1B registration lottery

4 Apr 22

UNITED STATES

April 1 marked the beginning of the 90-day filing period for petitioners whose registrations were selected in this year’s H-1B lottery.

High demand and strict numerical quotas, however, mean that tens of thousands of qualified registrants were not invited to file H-1B petitions. Depending on an employee’s particular circumstances, alternative visa routes may be available. Employers are encouraged to consider alternatives for those who were not selected in the lottery. These alternatives may include:

  • F-1 Optional Practical Training. Newly graduated foreign students may extend their F-1 student status through Optional Practical Training (OPT) if they seek to perform work directly related to their area of study. A 2016 regulation allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to apply for a 24-month extension of their one-year OPT period.
  • J-1 exchange visas. Companies may bring foreign students and graduates of foreign universities to the U.S. as trainees for up to 18 months or as interns for up to 12 months. One of the limitations to this visa category is that employers may not hire a J-1 visitor for a position that is filled or would be filled by a full- or part-time employee. Exchange visitors also must prove their intent to return to their home country and in some cases must return to their home country for two years at the end of their J-1 status.
  • H-3 Trainee visas. Trainee visas are available for individuals engaged in job-related training that is not available in their home country. These visas are not intended for U.S. employment and are intended to train the individual for a job they will perform outside the U.S.; therefore, H-3 trainees are restricted in the type of employment and cannot perform work in the normal operation of the business in which U.S. workers are regularly employed.
  • L-1 intracompany transfer visas. The L-1 category allows companies with international offices to transfer employees in managerial or specialized knowledge positions from a foreign branch, affiliate, parent or subsidiary office to their U.S. offices. Only employees with at least one year of experience in the company’s foreign operations in the last three years are eligible. Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and applying for L-1 status thereafter. L-1B visas for individuals with “specialized knowledge” are valid for up to five years, while L-1A visas for managerial workers are valid for seven years.
  • O-1 “extraordinary ability” visas. Individuals demonstrating extraordinary ability in business, science, education, art or athletics may qualify for an O-1 visa. This category requires evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.
  • E-2 Treaty Investor visas. Employees who are nationals of a country holding a treaty with the U.S. may qualify for E-2 visas. Although this route has traditionally been used by individual investors and smaller employers, in recent years, large established companies have started to leverage E-2 visas to hire and retain executives, managers and other essential employees in the U.S. The list of treaty countries is available here.
  • Country-specific nonimmigrant visas. Under bilateral agreements, certain nationalities are eligible for temporary nonimmigrant visas. These visas include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens, and TN classification for citizens of Canada and Mexico in designated professional categories. The TN classification was created by the North America Free Trade Agreement (NAFTA) and continued in the United States-Canada-Mexico Agreement (USMCA).

BAL Analysis: Employers are encouraged to work with their BAL attorney to explore H-1B alternatives for their current job candidates as well as to map out long-term options for their workforce.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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