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Earlier this month, the Department of Homeland Security published a regulation to overhaul the H-1B lottery and move to a one-beneficiary, one-selection system rather than the current employer-focused process. This change has the backing of the business community and is designed to reduce incentives for bad actors to submit multiple registrations for the same individual.
It also has the potential to reduce the overall number of H-1B registrations and improve H-1B selection rates.
Still, we expect H-1B demand to outpace supply once again this year. Under federal law, 85,000 cap-subject visas are available each year, including 20,000 set aside exclusively for advanced degree holders. In recent years, we’ve seen demand for H-1Bs skyrocket — even through a global pandemic and an uncertain economy.
As we discussed in a recent webinar, H-1B contingency planning is as important as ever. It is particularly important to have a backup plan for employees whose current work authorization will expire this year or next year, though it doesn’t hurt to begin planning even earlier.
Some of the more common H-1B alternatives include:
Every cap season has its own flavor, and we don’t always know how economic trends and regulatory changes will impact H-1B demand.
We do know the H-1B program continues to be oversubscribed. Given the low selection rate in recent years, we know many employees will be back in the lottery this year. On top of that, the H-1B registration fee is set to jump from $10 to $215 next year, providing another incentive for employers to submit registrations now.
As we said in our webinar: Plan early and often. A good H-1B contingency plan for valued employees can set you up for success this year and well into the future.
Michelle Funk is a partner and the head of BAL’s office in Tysons, Virginia. Gabriel Castro is a senior associate and head of BAL’s office in Los Angeles. Michelle and Gabriel’s recent webinar “Plan early and often: H-1B alternatives in a tight labor market,” is available on-demand here.
Lawmakers introduce a Name, Image and Likeness bill with new provisions for F-1 student athletes. The U.S. curtails consular services in Niger. And a closer look at USCIS’ second H-1B lottery.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
Maggie Murphy is a Partner with BAL and leads the Austin office. She specializes in complex, creative business immigration solutions. She has over 20 years of technical experience in immigration law and is an industry leader in PERM, I-9 and E-Verify compliance and business visa case types. We sat down with Maggie to discuss this year’s H-1B season.
Q: What are some of the challenges with the H-1B visa program you are seeing so far this year?
A: The cap season was drastically bad for most employers who had registered cases. We didn’t realize that the national average was so low, although we knew that our internal average was falling right into those percentages. But to have less than 20% of registrations selected was unprecedented.
Q: What are the implications for employers?
A: The H-1B cap and the lottery process itself has become unreliable because of these low selection numbers compared to registrations. It is forcing employers to plan so much more ahead, and then if they get good candidates who only have one or two chances at the lottery, they are reconsidering whether they should even hire those candidates, which is really a shame. In our economy, and for our U.S. businesses that are trying to attract foreign talent, they are hitting a lot of dead ends.
Many of our clients are doing contingency planning for their valuable foreign talent who have submitted up to three times and still haven’t been selected in the H-1B lottery. This involves developing training programs for these individuals or finding roles for them in overseas offices. But some are starting to reconsider continuing to recruit from certain foreign programs, such as foreign engineering programs, for example. Particularly, U.S. employers that don’t have international offices and can’t send someone to work in an overseas office, they are considering the E-Verify program so that they can participate in STEM Optional Practical Training (OPT). And they are also starting the permanent residence process early so the individual will have a green card-based work option by the time their OPT expires.
Q: What do you recommend employers do?
A: Start planning as early as you can. Unless Congress makes some change, the chances are this cycle of very low selection percentages will continue. It seems to get much lower every year.
Q: What other options do employers have?
For employers willing to hire students, there is OPT, which is for temporary employment directly related to a student’s major area of study who is here on an F-1 visa. F-1 visas allow students to work part time while school is in session and full time when school is not in session. Students can stay in the U.S. for one year, and up to three years if they are eligible for an extension.
Another similar option is Curricular Practical Training (CPT), also for F-1 visa students, which allows students to come to the U.S. for training and to work in paid internship positions. CPT allows for full-time or part-time work.
The main difference between OPT and CPT is OPT can be completed before or after a student graduates. CPT must be completed before graduation.
J-1 visas are for students specifically in the U.S. for educational or cultural exchange programs. Students in J-1 status are allowed to work only part time, not more than 20 hours per week, during an academic year and full time only during summer and official university breaks.
H-3 nonimmigrant visas allow foreign nationals to come to the U.S. as trainees in any field that is not available in their home country and stay for up to two years.
Q: What are the options for employers who are not hiring students?
A: Employers can consider hiring foreign nationals from countries the U.S. has immigration or trade-related treaties with, such as Canada and Mexico (eligible for TN visas), Australia (eligible for E-3 visas), and Chile and Singapore (eligible for H-1B1 visas).
Q: Are you seeing any of the alternatives become more common? Are employers turning toward L-1s for intracompany transferees or O-1s for those with extraordinary abilities, for example?
A: An emerging trend among larger companies is to establish a contingency plan specifically for their foreign population.
What I have seen in the last five years among larger clients that have international offices is some activity in developing rotation programs and using the H-3 trainee visa category for that, especially in the manufacturing and engineering industries. Employers tend to have already established training programs that often are at least three to six months of rigorous training before employees really get into their manufacturing or engineering role. So H-3 has been popular, although it is highly regulated and scrutinized by USCIS.
Others have started contingency planning for L-1s, developing an international rotation program so they can eventually send a talented person they want to retain in the U.S. to work in a foreign location for a couple of years and then bring them back to the U.S.
Both the L-1 and the H-3 visas require that the U.S. employer have an affiliated office overseas to either transfer employees to or send them to after their training rotation.
Q: If employers have questions about any of these alternatives or want to learn more about a specific option we have discussed, how can they reach you?
A: They are welcome to email me directly at mmurphy@bal.com.
The H-1B visa lottery, unlike cash lotteries, is particularly painful to lose — because the odds of winning are substantially greater, and because so much time, energy and documentation are required to compete. Added to this emotional mix are the professional dreams of the beneficiary, as well as the potential economic impact of winning the lottery and achieving employment goals and financial sustainability. For some, the temptation is to wait out the loss and simply reenter the next pool or hope for second-round selection. However, with H-1B cap selections at a historic low, employers and employees alike should start thinking about H-1B alternatives early. One option is the O-1 visa for individuals with extraordinary ability or achievement.
The O-1 is a nonimmigrant work visa and can be a great alternative to the H-1B cap. There are two types: O-1A and O-1B. The O-1A visa is for individuals who are considered experts in the fields of science, business, education or athletics, while the O-1B is reserved for individuals who have achieved distinction and prominence in the arts. Individuals of all nationalities may apply for an O-1 work visa, and students with advanced STEM degrees or individuals with arts and design backgrounds are ideal candidates.
Unlike the H-1B visa, the O-1 is not subject to a cap. It may also be extended indefinitely and can be filed at any time during the fiscal year.
O-1 visa applicants are required to submit evidence that satisfies at least three of the O-1A or O-1B eligibility criteria. If you are on an F-1 student visa and started temporary employment under Optional Practical Training (OPT) or are in your first year of a STEM OPT, this is a great time to build your O-1 profile. The filing criteria you will have the most ability to control are: original contributions of significant impact, published work, judging the work of others, and awards and grants.
In the face of a non-selected H-1B cap registration, it is important to continue to develop, create and publish your work — especially since it’s one of the criteria options for filing an O-1. Original contributions come in many forms.
For researchers, tangible forms of original contributions include research papers, patents and presentations. Researchers should take advantage of opportunities to publish and submit papers to top journals or conferences in their fields. Research papers need to undergo the peer review process to satisfy this O-1 criteria. U.S. Citizenship and Immigration Services understands that journals have longer turnaround times than papers submitted for conferences, so focus on the quality of the journals to which you publish over the quantity of publications.
For business professionals, examples include strategic delivery of services or products, key accomplishments considered as significant in their field or novel use of technology in entrepreneurialism. For artists, original contributions are original, novel and creative designs and content.
Continue building upon your accomplishments by publishing and making the tangible forms of your original contributions available in your field to further the area of expertise. Additionally, if your work gains media attention, it may assist your O-1 application. However, you cannot ask a media outlet to cover your accomplishments or events — the outlet must decide to feature you independently. Company press releases, whether original or republished, are considered insufficient evidence for these purposes.
The O-1 guidelines recognize judging the work of others as a step toward establishing eligibility. In order to satisfy this measure, you must judge those who are considered your peers in the same or similar field of your expertise. This may be satisfied by peer reviewing articles for publication in journals or conferences, and by judging scientific, technological or creative competitions.
However, there is a pivotal catch: You can’t solicit an invitation to judge; you must be invited based on your accomplishments in the field. Submitting your work to journals and participating in conferences and competitions will increase your visibility with selection panels and therefore increase the opportunities to receive an invitation to judge your peers.
Joining a conference planning committee is another way to establish O-1 eligibility, especially if you become a conference committee chair or area chair. In this elevated status, you will receive multiple peer review opportunities to establish O-1 visa eligibility under this criterion.
The receipt of awards and grants is another O-1 criterion to consider when applying for an O-1 visa. Submit your work to competitions and exhibitions in your field of expertise with a national or international reach. If you place in the competition, it will not only increase your visibility in the field but also may be another step toward O-1 eligibility.
O-1 guidelines alternatively permit the submission of other evidence to establish eligibility. This may include work you shared online that received viral downloads or impressions.
If you are seeking employment, especially as a STEM student, consider applying to a nonprofit organization or educational institution.
Nonprofits and educational institutions provide opportunities to bolster your O-1 filing, especially if you gain membership in a committee that is applying for a grant. The principal researcher on the committee will receive credit for the grant (which can be used directly toward the O-1 awards criteria), but if you’re not the principal, you can still leverage the grant award to heighten the significance of your original work.
If you are an F-1 student visa holder, you should consider joining a nonprofit — and if you are close to exhausting your F-1 status, you may request having a cap-exempt H-1B visa filed on your behalf. The latter filing will buy you more time to continue your U.S. immigration journey and establish your O-1 eligibility credentials.
The O-1 work visa process is just that — a process. It is incumbent upon you to set aside reasonable time to amass the required evidence. Now is a good time to begin O-1 application preparation, as the process demands supportive documentation.
O-1 petitions require supportive documentation in the form of reference letters. The best strategy is to optimize the downtime following a recent H-1B cap non-selection to build your network of professional contacts and identify your reference recommendations.
Additionally, ask your employment recruiter to request an O-1 assessment for you. If the immigration specialists determine that you do not yet fulfill all the O-1 qualifications as a job candidate, they will typically inform your prospective employer.
Strategically converting an H-1B visa cap loss to a successful O-1 filing takes substantial planning and commitment to ensure success. Further, a successful O-1 filing lays a foundation for green card options for self-sponsorship in the EB-1A or NIW categories. But if you’re willing to stay the course, it ultimately preserves your ability to enter and work in the United States, increasing your odds of fulfilling your closely held employment and financial goals — especially in these uncertain economic times.
Cecilia Lai is a Senior Associate in the Dallas office of BAL. She represents employers whose economic sustainability and growth are dependent upon securing workers through the all aspects of business immigration processes with a specific focus on EB-1A, EB-1B, NIW and O-1 visa processes. She is a member of and past speaker for the American Immigration Lawyers Association. Committed to promoting Asian American awareness, Cecilia is also on the board of directors of the Asian Film Festival of Dallas, a nonprofit organization.
BAL Senior Associate Matt Dillinger spoke about H-1B visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We sat down with Matt to discuss his work on H-1Bs and more.
We will discuss best practices for prepping for the 2024 cap season, new occupational codes used for H-1Bs, and how to handle employees in licensed professions. We will also discuss scenarios that require special considerations and creative legal arguments to successfully gain work authorization approvals.
There is a provision that allows people to extend their H-1B beyond the six-year maximum period if they have an approved immigrant petition but no green card is available. This is especially common for Indian and Chinese nationals for whom priority dates are significantly backlogged. But after the significant advancement of priority dates in 2020, many H-1B employees were no longer clearly eligible for these extensions, as they may have moved employers and thus not been able to file a green card application despite having been current for more than one year. Employees in this situation require a unique approach in order to continue to extend their status.
Many employers believe that when they file a change of employer petition for an employee, they must wait for approval by USCIS. But technically that employee can start working for a new employer as soon as the petition is received by USCIS. In the past, both employers and employees have shied away from doing that because Request for Evidence and denial rates were much higher. However, we are now seeing fewer RFEs and denials, so employers are becoming more comfortable allowing employees to start work before receiving final approvals. The same goes for employees.
Even experienced I-9 people might not know that there are special rules that make it possible to hire on receipt. Also, technically, employers don’t even need the formal USCIS receipt notice. You can submit I-9 paperwork based on the change of employer petition filing, proof of payment and proof of delivery.
I like things to be as clear and concise as possible. My approach is to provide a clear assessment of any risk I see, while also providing practical solutions or strategies, and minimizing the complexity of the situation, so the client feels confident moving forward.
I have always enjoyed learning languages and studying other cultures, so the international aspect of immigration law appealed to me. I find immigration law to be extremely rewarding. I feel good at the end of each day because I get to help my clients, help their employees and employees’ families and, in doing so, I believe I am making the United States a better place.
Matthew Dillinger is a Senior Associate in the Austin office of BAL. His practice focuses on developing and implementing creative strategies to meet the needs of his clients. He has worked with clients from a wide range of industries, including telecommunications, information technology, fintech consulting, higher education and healthcare, Matt believes strongly in pro bono work and has represented pro bono clients in DACA, U visa and asylum cases. In addition, he has served on the Leadership Board of the National Immigrant Justice Center.
The United States eased international entry requirements Monday for foreign nationals who are fully vaccinated against COVID-19. The country-based “physical presence” bans that had restricted air travelers from Brazil, China, Iran, South Africa, and most of Europe are now revoked.
Even with the new entry rules, however, the COVID-19 pandemic continues to present challenges for companies and their employees. The latest BAL White Paper, “Lifting the Travel Bans, Holiday Travel and Planning: What to Expect in the Coming Months,” provides details on the new U.S. entry requirements and highlights ongoing considerations for employers and employees as they plan to travel in the coming months.
Fill out the below form to receive your copy of the White Paper:
The Trump administration’s policies toward H-4 spouses—delaying their work authorization while preparing to eliminate their work rights altogether—are disrupting the lives of high-skilled workers and the businesses that employ them.
For over a year, U.S. Citizenship and Immigration Services has been working to reverse the 2015 regulation that allows a subset of H-4 spouses to work, and a rescission regulation could be formally proposed at any time. The agency has recently ended a longstanding practice of concurrently processing H-4 petitions and employment authorization documents (EADs) with the H-1B spouse’s petition, even for those who pay for expedited service. H-4 petitions are now taking months to be approved, despite the government’s own estimate that it takes an average of 24 minutes to process an H-4 renewal and 12 minutes to process an H-4 EAD. What was once a quick and reliable process has turned into a waiting game.
The 2015 regulation had two aims: reduce the personal and financial burden on H-1B families and help U.S. companies remain competitive with countries that allow accompanying spouses to work.1 Rescinding the regulation will have the opposite effect. The majority of H-4 workers are college-educated women from India—75% hold a bachelor’s or master’s degree, and 13% hold a degree higher than a master’s.2 Eliminating their right to work will cost more than $1 billion annually in lost revenue alone. The human costs, while less quantifiable, carry a significant price tag for businesses. Unexpected delays in employment authorization “can destabilize a business and leave mission-critical roles unfilled,” a bipartisan group of senators said in a letter to USCIS in May.
Last month, several H-4 spouses filed a lawsuit to stop the processing delays that are putting their jobs, homes and livelihoods at risk. One spouse has been waiting since January for his documents to be renewed. During the delay, his EAD expired, forcing his employer to put him on unpaid leave. If terminated, he will lose his employer-provided health insurance that covers the family, including the couple’s two U.S. citizen children. Another spouse risks losing her job with an insurance company while USCIS sits on her renewal application. She has passed up a better job because of uncertainty about whether her work authorization will be renewed in time. Some states require an approved H-4 petition to get a driver’s license which means H-4 spouses risk losing their driver’s licenses while their petitions are pending, making daily responsibilities like shuttling kids to school more difficult.
U.S. companies understand that when it comes to expatriate employees, a happy family correlates with higher employee satisfaction and better retention. A spouse who loses the right to work is more likely to move elsewhere, taking along the principal employee. When an accompanying expat spouse is unable to work, it not only impacts the family finances, but also carries personal costs such as social isolation, lack of purpose and domestic tension.3 While lawsuits wind through the courts and Congress debates whether to fix an outdated green card system, many couples are voting with their feet—returning to India to start businesses, or moving to Canada where open work permits are granted to spouses of high-skilled workers as a right and the route to permanent residency is much faster and more predictable.
U.S. policymakers should take a lesson from business. If they want to attract the best and the brightest, as they say they do, they can no longer take for granted that high-skilled immigrants will choose to come here when other countries are shaping their policies to compete for global talent—policies that take into consideration the personal and professional lives of both spouses and the well-being of the family unit as a whole.
Nancy Shalhub is an Associate in the Dallas office of Berry Appleman & Leiden LLP.
1 Department of Homeland Security, “Employment Authorization for Certain H-4 Dependent Spouses,” Federal Register, vol. 80, no. 37, Feb. 25, 2015, https://www.federalregister.gov/documents/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses.
2 American Action Forum, “The Economic Value of Work Permits for H-4 Visa Holders,” Jacqueline Varas, March 20, 2019, https://www.americanactionforum.org/research/the-economic-value-work-permits-for-h-4-visa-holders/#_edn3.
3 University of Tennessee at Chattanooga, “Impact of spousal work restrictions and number of dependents on expatriates’ work life and overall life satisfaction,” Industrial and Organizational Psychology Translational Research and Working Papers, 2018, https://scholar.utc.edu/iopsy/1.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.