H-1B Visa Alternatives: Options Available to Those Unlucky in the H-1B Lottery: Part 1
July 18, 2017
By Becky Sigmund and John Hill
Many South Carolina companies use the H-1B visa category to employ foreign workers who are skilled professionals. This visa category is subject to an annual quota – or Cap. April 1, 2017, marked the first day U.S. Citizenship and Immigration Services (USCIS) began accepting this year’s H-1B Cap petitions. By April 7, USCIS closed the H-1B Cap door, having received 199,000 petitions for 85,000 available H-1B visas. That means applicants had a 42 percent chance of being selected in what has now become the “H-1B Annual Lottery.” Although employers may file again in next year’s H-1B lottery, often this does not resolve the issue of continued employment for the sponsored worker. Nonetheless, South Carolina employers may have options to keep or hire those unlucky H-1B applicant workers.
F-1 Optional Practical Training (OPT) Extension or F-1 Curricular Practical Training (CPT)
The F-1 visa category applies to foreign students studying in the United States. Many H-1B Cap sponsored workers are already working for the Employer in F-1 status that includes a one year OPT upon graduation. F-1 OPT students who have completed a STEM degree (Science, Technology, Engineering, and Mathematics) in a designated field approved by Department of Homeland Security (DHS) may be eligible to apply for an additional 24-month STEM OPT extension. South Carolina employers should note that this option imposes specific obligations on the employer in the STEM extension application process. If successful, the STEM OPT extension could allow continued employment authorization and time enough for two more chances at the H-1B Lottery.
For those F-1 students not in a STEM field, the OPT will end after one year. These students may have an option to go back to school and continue their studies in F-1 student status. F-1 students have limited opportunities to engage in employment during their studies. One example is employment related to their field of study under a CPT program – such as a co-op or internship program. Availability and eligibility varies by school and program, but it would be worthwhile evaluating whether CPT is a viable option to allow for continued employment of the F-1 student.
Cap-Exempt H-1B
Some employers qualify as a “Cap exempt employer”, which allows them to file an H-1B at any time. In very general terms, a Cap-exempt employer is defined as (1) an institution of higher education (as defined by regulation), (2) a nonprofit entity related to or affiliated with a higher education institution , or (3) nonprofit research organization or a governmental research organization. Even though a South Carolina employer may not qualify as a “Cap-exempt employer”, the employer may have a qualifying relationship with another entity that would creatively establish eligibility for a Cap-exempt H-1B solution.
O-1 or P-1 Extraordinary Ability Visa Options
O-1 and P-1 visa options are generally reserved for those who demonstrate extraordinary ability in the sciences, arts, education, business or athletics. The criteria for these visa categories is strictly defined by regulation and case law, but ultimately, an applicant must be at the top of his or her field nationally or internationally. If a candidate is considered “cream of the crop,” the employer should evaluate the viability of the O-1 and/or P-1 option.
L-1 Intracompany Transferee
The L-1 Intracompany Transferee visa allows multinational companies who have a presence abroad and in the U.S. to transfer employees from an overseas office to the U.S. office. The L-1 category also requires the worker to be employed at the overseas office for at least one year in order to be eligible for an L-1 visa. The foreign employment requirement may pose an impediment for the L-1 category to be a viable option to workers whose H-1B petition was not selected in the H-1B cap lottery. Nonetheless, South Carolina employers unlucky in the H-1B Cap lottery could send the worker abroad for the requisite time and assignment, and thereafter bring him/her back as an L-1 intracompany transferee. For those South Carolina employers with an international presence, this could be a viable option, but careful consideration should be given to the immigration, tax and employment issues associated with placing an employee abroad. An added benefit to the L-1 category is that L-2 dependent spouses are eligible to apply for general work authorization.
This article summarizes the first round of alternative options for employers unlucky in the H-1B Cap lottery. Stay tuned for further discussion on this topic in our future article, Part 2 – H-1B Visa Alternatives.
Ogletree Deakins has one of the largest business immigration practice groups in the Carolinas
with eight immigration attorneys in South Carolina alone. Contact Rebecca Sigmund at [email protected] or John Hill at [email protected].
