Every year, a limited number of H-1B visas are given to people who want to work in the U.S. In a recent post, we covered what to do if you’re selected in the H-1B lottery. Due to the high number of registrations and the limited number of slots, the majority of applicants were not selected.
If you (or your employee) weren’t selected in the lottery, there are still options available to you. For example, you may qualify for a cap-exempt H-1B through nonprofits or research institutions, or other visa categories.
Here are some possible next steps that might be worth considering:
Try Again Next Year
If your current immigration status allows you to stay and work in the U.S. through the next lottery season, you should consider having your employer register you again next year. The window to submit H-1B registrations opens in March and the first round of selected applicants are notified in April of each year. On occasion, USCIS announces a second or third round of selections in one lottery season, so your employer should monitor your registration until USCIS confirms that all H-1B cap selections have been announced for that year. It is worth noting that you are not required to be in the U.S. when an H-1B registration is filed for you, so U.S. companies may allow you to work remotely from your country of origin until you can apply again.
STEM OPT Extension
If you are on Optional Practical Training (OPT) and have a degree in science, technology, engineering, or math, you may qualify for an extension of work authorization of up to two additional years. You must apply before your current OPT expires, be working in a position that is related to your studies, and work for a company enrolled in E-Verify. Make sure to work with your university to ensure everything is submitted on time.
Go Back to School
If your OPT is expiring and you are not eligible for the STEM OPT extension described above, you can enroll in another program at a university to receive work authorization in the form of Curricular Practical Training (CPT) or Pre-Completion OPT. Your work must be related to your studies in order to qualify for either form of work authorization. In addition, other rules and limitations may apply, so be sure to do your research and discuss this with your university in advance.
O-1 Visa
If you have extraordinary ability or achievement in your field, you may qualify for an O-1 visa. The O-1A visa is for individuals with extraordinary ability in business, science, education, and athletics. The O-1B visa is for individuals with extraordinary ability in the arts. O-1 visas are initially granted for up to three years and can be extended as needed. They can also be a good stepping stone toward an employment-based green card known as the EB-1 (more on this below).
Because the O-1 is an employment-based visa, you will need a sponsor such as a U.S. employer or agent to qualify. In certain circumstances, you may be able to start a U.S. company to act as your sponsor. You will also need to present evidence that you are considered extraordinary in your field, such as awards or being featured in major press.
We find that many of our clients are more extraordinary than they think, so if this is an option you are considering, you should discuss your eligibility with an experienced immigration lawyer.
Employment-Based Green Card (PERM-Based)
Those who have an offer of employment by a U.S. company and are looking for longer term strategies to work and live in the U.S. may want to consider starting an employment-based green card case.
It is important to note that this option does not provide immediate work authorization in the U.S., so this means that foreign nationals who are being sponsored for an employment-based green card must either maintain some other form of immigration status or wait abroad during this process.
For most individuals, the employment-based green card process involves three main steps: (1) completing the PERM or Labor Certification process, (2) filing an I-140 immigrant petition, and (3) submitting an Adjustment of Status application if you are already in the U.S. or completing an interview at a U.S. consulate abroad if you are overseas. It also requires an offer of a permanent job by a U.S. employer. Because of the multiple steps involved, the employment-based green card can take several years or longer to complete, especially if you were born in a country where there are high numbers of green card applicants such as India or China (also referred to as a country with visa “backlogs”).
Despite visa backlogs, this green card pathway is still highly sought-after by employers and employees alike, as it is one of the best ways to keep talented individuals in the U.S.
National Interest Waiver (NIW) Green Card
This is a green card option that does not require employer sponsorship if you can show your work benefits the U.S. as a whole. In addition, qualifying for the NIW allows you to skip the PERM process required for most employment-based green card cases and file an I-140 immigration petition under the employment-based second preference (i.e. EB-2) category immediately, which can save candidates up to several years of time.
In some situations, you may be able to file the final stage of the green card—the Adjustment of Status application—at the same time. However, as explained briefly above, the overall green card process can still take years, especially if you are from a backlogged country so it is important to discuss overall timing and strategy with an experienced immigration attorney.
If you have exceptional ability in your field and you work in the sciences, arts, or business, this might be an option worth considering.
EB-1A Green Card
The EB-1, or employment-based first preference, green card is broken down into three subcategories reserved for those with (1) extraordinary ability in their field (EB-1A), (2) outstanding researchers and professors (EB-1B), and (3) multinational executives and managers (EB-1C). Like the NIW green card, the EB-1 green card category allows you to skip the PERM process. For certain EB-1A applicants, the petition can also be self-sponsored if you can demonstrate that you will continue to work in your field.
If you have extraordinary achievements in science, art, or business, have been offered tenured or similar position as a professor or researcher, or are a leader in a multinational organization looking to set roots permanently here in the U.S., this may be an option for you.
Conclusion
The above summarizes a few common pathways that those who were not selected in the H-1B lottery process consider, but there are also other options that could be available to you depending on your specific circumstances.
If you have questions about the H-1B process or its potential alternatives, McEntee Law Group is here to help. Contact us today to explore your options! Email us at info@mcenteelaw.com or call us at (773) 828-9544.
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