May 19, 2022 Article

What Are My Options If My H-1B Registration Was Not Selected?

The H-1B nonimmigrant visa category allows employers to sponsor foreign nationals performing work in a “specialty occupation.” This typically requires an offer of employment in a job requiring at least a U.S. bachelor’s degree, or its equivalent, in a specific specialty. There is an annual limit or “cap” on H-1Bs of 65,000, with an additional 20,000 slots awarded to recipients of a U.S. master’s degree or higher. In order to allocate those H-1B numbers, USCIS holds an H-1B cap-subject “lottery” each year.

In recent years, that lottery has been conducted at the end of April, based on electronic registrations submitted during a filing window in March. Selected registrants have a 90-day deadline to file an H-1B petition, demonstrating that the offered job and the candidate meet all requirements. Then, if insufficient petitions are approved to meet the cap, additional lotteries may be held to meet the cap.

Our company registered one or more candidates who weren’t selected in the lottery. Are there any other options to employ them?

The short is – maybe! Here are some alternative nonimmigrant visa categories your company may consider:

Optional Practical Training/Curricular Practical Training

  • Nationals of certain countries party to a qualifying treaty with the United States may receive an E-2 visa if the individual or their company invests a substantial amount of capital in a U.S. enterprise. Certain essential employees of a company with the same nationality may also qualify for an E-2 visa.
  • The E-1 visa category is appropriate for citizens of qualifying treaty countries who are coming to the United States to engage in substantial trade in goods, services, or technology, principally between the United States and the treaty country.

Work Visas Based on Nationality

  • There are some nonimmigrant employment visa categories that are available only to citizens of certain countries.
    • H-1B1 visas are available to citizens of Chile and Singapore. The requirements for the category are similar to an H-1B.
    • E-3 visas are granted only to citizens of Australia who will work in specialty occupations.
    • TN employment sponsorship is an option for citizens of Mexico and Canada, who are coming to the United States to perform work in certain “Professional Occupations.”

Treaty Traders and Treaty Investors

  • Nationals of certain countries party to a qualifying treaty with the United States may receive an E-2 visa if the individual or their company invests a substantial amount of capital in a U.S. enterprise. Certain essential employees of a company with the same nationality may also qualify for an E-2 visa.
  • The E-1 visa category is appropriate for citizens of qualifying treaty countries who are coming to the United States to engage in substantial trade in goods, services, or technology, principally between the United States and the treaty country.

International Entrepreneurs May Have an Option for “Parole” into the United States

  • The International Entrepreneur Rule allows lawful entry into the United States and work authorization for employees/part owners of certain start-up companies that have received qualifying investments or grants.

Visas for Individuals with Extraordinary Ability or Achievement

  • The O-1A category is for individuals with extraordinary ability in science, business, education, or athletics based on demonstrated, sustained national or international acclaim.
  • The O-1B category is open to individuals with extraordinary ability in the arts, or achievement in the motion picture/television industry, demonstrated by meeting certain criteria.

Visas for Trainees

  • An H-3 visa might be an option if the goal is to provide job-related training for work that will ultimately be performed outside the United States.
  • The J-1 exchange program may be a good option to provide training and enhanced skills for individuals with a degree or professional certificate and at least one year of work experience. Employers should coordinate with a sponsoring agency approved by DOS.

Jump Straight to Green Card Sponsorship

  • If none of the nonimmigrant options are a good fit, the best route to employing a foreign national might be an immigrant petition filed by a prospective employer or self-petitioned by the individual. If sponsored by an employer, it may be necessary to first request certification from DOL.

If you believe that one or more of the options outlined above would work for your company and candidate(s), we encourage you to contact Mariana Baron at [email protected].

Firm Highlights

News

Preti Flaherty Continues Year of Remarkable Growth with Addition of Five New Attorneys

Preti Flaherty is pleased to announce the arrival of five new Associates to the firm: Scott A. DeLong, Christopher S. Knight, Kijana Plenderleith, Harper A. Weissburg, and Joshua D. Williams. In our Portland, Maine, office...

Publication

H-2B Temporary Visas: Additional 35,000 Coming in Second Half of FY 2022

The Department of Homeland Security (DHS) and the Department of Labor (DOL) recently announced the forthcoming publication of a joint temporary final rule to make available an additional 35,000 H-2B temporary nonagricultural worker visas...

Publication

What to Expect When You're Expecting: Two New Federal Laws Expand Workplace Rights and Protections for Pregnant and Nursing Employees

On December 29, 2022, President Biden signed two (2) bills into law that expand workplace protections for pregnant and nursing employees—the  Pregnant Workers Fairness Act  (the "PWFA") and the  Providing Urgent Maternal Protections for...

Publication

Considerations When Terminating a Foreign Worker (H-1B, H-1B1, E-1/E-2, E-3, TN, L-1, O-1)

Terminating an employee is always a difficult decision. Terminating a foreign worker has additional challenges and consequences that must be considered, and employers must ensure they comply with state and federal law. An employer...

Publication

FY2024 H-1B Registration Fact Sheet for Employers

Registration Process To file H-1B petitions subject to the FY2024 cap for an employee, you must first electronically register and pay a $10 fee for each electronic registration. The electronic registration includes basic information about...

Publication

New EEOC Poster Requirement and Guidance on Notice-Posting in Hybrid Workplaces

A modified version of this article was published in Mainebiz on February 3, 2023. Read the article here . The U.S. Equal Opportunity Commission (“EEOC”) recently updated the “EEO is the Law” poster and...

Publication

Changes Affecting Employment Authorization for L-2, E, and H-4 Dependent Spouses

On November 12, 2021, USCIS announced that L-2 and E dependent spouses are no longer required to apply for an EAD to work in the United States. Instead, L-2 and E dependent spouses are...

Publication

35,000 Additional H-2B Visas Now Available for the Second Half of Fiscal Year

On May 18, 2022, the Department of Homeland Security (DHS) and the Department of Labor (DOL) issued a temporary rule authorizing the issuance of additional 35,000 H-2B visas for the second half of Fiscal...

News

Preti Flaherty Announces Attorneys Kristy Abraham and Mariana Baron Promoted to Partner

Preti Flaherty is pleased to announce that the firm’s partnership has named two new partners: Kristy Abraham and Mariana Baron. Both attorneys stand out as distinguished practitioners in the field of corporate law and...

News

U.S. News – Best Lawyers Ranks Preti Flaherty Among 2023 Best Law Firms

Preti Flaherty has been named among the 2023 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...