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

U.S. employers are encouraged to begin considering alternative visa routes for individuals who were not selected in the lottery. A record 236,000 H-1B petitions were received this season, exceeding the caps for the fourth straight year and underscoring the importance of finding other options for candidates who will not obtain H-1B visas.

Some common alternative routes for temporary foreign workers include:

• F-1 Optional Practical Training.Newly graduating foreign students may extend their F-1 student status through Optional Practical Training (OPT) if they seek to perform work directly related to their major area of study. A new regulation that takes effect May 10 further expands OPT opportunities for students holding degrees in approved STEM fields (science, technology, engineering or mathematics).
• J-1 exchange visitors. 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. Some of the limitations to this visa category are that employers may not hire a J-1 visitor for a position that is filled or would be filled by a full-time or part-time employee, and exchange visitors must prove their intent to return to their home country and in some cases return to their home country for two years at the end of their J-1 status.
• 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.
• L-1 intra-company transfers.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 are eligible. Some companies may consider longer-term strategies of sending select candidates to work 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. 
• Country-specific nonimmigrant visas. Under bilateral agreements,certain nationalities are eligible for temporary nonimmigrant visas. These 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 under the North American Free Trade Agreement.
• “BILOH.”The B-1 in lieu of H-1B, or BILOH, is an option in limited circumstances. The B-1 is a visitor visa and the BILOH is being closely scrutinized for misuse, so companies should consult with their BAL attorney before considering this route.

BAL Analysis: Employers are encouraged to work with their BAL attorney to explore alternatives for current candidates and to map out long-term strategies 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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