Options After The H-1B Lottery

On Friday, April 1, 2016 the H-1B cap filing season began. By April 7, 2016, or shortly thereafter, the USCIS will announce that it has received more than 85,000 H-1B petitions, which is the H-1B cap limit. Last year there were over 300,000 H-1B petitions submitted to the USCIS within the first week of April. So what happens then?  The USCIS holds an H-1B lottery and selects from the entire flings a mere total of 85,000 petitions to process.

Until there are real changes by Congress to help the American economy and raises the  H-1B cap, the H-1B lottery will result in many otherwise qualified workers with H1B work visa to consider moving outside the United States or to consider alternative visa options. The scope of this article is to address some possible options:

1. Those that have had an H-1B in the past are often not counted against the H-1B cap. If you have had an H-1B approved in the past, you should check this out carefully, even if you have never entered the United States and activated the H-1B.
2. H-1B cap-exempt employers can file for H-1Bs at any time. An H-B cap-exempt employer is (1) a University; or (2) a non-profit that is related to a University, such as a University Hospital; or (3) A Non-Profit research organization; or (4) A Non-Profit government research organization
3. Nationals of these countries have alternative visa categories that are similar to the H1B Visa, but are not subject to the H-1B cap: Canada, Mexico, Australia, Chile, and Singapore. If you hold a passport from any of these countries you can seek a visa such as a TN-1, E-3, or H-1B1.
4. OPT for F-1 Students who need F1 Visa. The F-1 rules liberally allow students to work in the United States. Many students can now work for 24 months, after their graduation from a United States college.
5. Green Card filings can often be done quickly. All categories except India EB-2, EB-3, China EB-2, EB-3 and Philippine EB-3 have very favorable processing times. Most applicants who qualify for categories other than these should expect their green cards in 12-18 months.
6. The L1 visa (Multinational Executive, Managers, and Specialized Knowledge workers), the O-1 (Extraordinary Ability) and the E-1/E-2 (Treaty Trader and Treat Investor) offer some options for high level and critical employees.

We have here addressed several possible options to those who unfortunately won’t be selected in this year H-1B program and are still looking for a way to reside and work in the United States.

For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.