When Rolling the Dice Didn’t Lead to Success: Visa Options After the H-1B Cap Lottery

Employers seek predictability when hiring employees. You don’t need to be a mathematician (although that might help qualify you as an outstanding researcher) to know that the odds of being selected in U.S. Citizenship and Immigration Services’ H-1B cap lottery have decreased over the past four years. Each year the number of applicants for the H-1B cap lottery has increased, while the number of available H-1B visas has remained constant. This year 236,000 petitions were filed for only 85,000 available H-1B cap lottery slots. Employers may wish to examine the following options to increase the probability of retaining valued foreign national employees who were not chosen in the H-1B lottery.

Optional Practical Training

Optional Practical Training (OPT) is provided by the U.S. government to foreign students who seek employment experience in their major fields of study. Most students are eligible for 12 months of post-completion OPT employment authorization following graduation. Students with science, technology, engineering, and mathematics (STEM) degrees may be eligible for an additional 24 months of employment authorization. Please note that these students must adhere to strict filing deadlines when applying for OPT. Many employers seek alternatives that may permit them to employ foreign students in the United States after the students’ OPT periods conclude. (The visa categories below also apply to foreign national professionals who are not currently students.)

NAFTA – TN Status

The North American Free Trade Agreement (NAFTA) created economic and trade relationships among the United States, Canada and Mexico. Under NAFTA, the TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States (or a change of status within the United States) to engage in business activities at a professional level. Among the various types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, biologists, computer systems analysts, economists, engineers, mathematicians, and scientists. An employer may be able to employ a foreign national in TN nonimmigrant status if (1) the foreign national is a citizen of Canada or Mexico; (2) the position in the United States requires a NAFTA professional; (3) the foreign national has a full-time or part-time job offer with a U.S. employer; and (4) the foreign national has the qualifications to practice in the profession in question.

H-1B1 and E-3 Visas

There are other country-specific visa categories related to free trade agreements with Australia, Chile, and Singapore that allow companies to sponsor citizens of these countries to be employed in “specialty occupation” positions that require, at a minimum, the possession of a U.S. bachelor’s degree in fields related to the positions (a requirement similar to the H-1B qualifications). Employers may be able to employ Australian citizens under E-3 visas, and Chilean and Singaporean citizens under H-1B1 visas.

O-1 Visa – Extraordinary Ability

The O-1 nonimmigrant visa is for an individual who possesses “extraordinary ability” in the sciences, arts, education, business, or athletics, and has been recognized nationally or internationally for those achievements. To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim, and must be coming temporarily to the United States to continue work in the area of extraordinary ability. Although most students will not immediately qualify for O-1 status, it is useful to evaluate whether advanced degree graduates, particularly in the sciences, may be able to qualify.

L-1 Visa – Intracompany Transferee

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated overseas foreign offices to its offices in the United States. The L-1 transferee must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States.

Although the L-1 category requires one full year of employment outside the United States with the organization, if a U.S. employer is able to transfer the employee to an overseas office for twelve continuous months, it may be possible to have that employee return to the United States in L-1 status. Please note that the U.S. government will carefully assess whether an employee in the L-1B specialized knowledge category could obtain “specialized knowledge” about the employer within a year.

E-1 Visa (Treaty Traders) and E-2 Visa (Treaty Investors)

The E-1 nonimmigrant classification allows a citizen of a “treaty country” (i.e., a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade on his or her own behalf. The E-2 nonimmigrant classification allows a citizen of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification. For example, if an employer in the United States is ultimately an Italian-owned business, the employer may be able to hire a student who is an Italian citizen under an E-1 or E-2 visa. (Note that the U.S. Department of State’s has compiled a list of countries with which the United States maintains a treaty of commerce and navigation.)

Conclusion

The above list of visa categories may offer employers credible options for employing foreign national students who were not selected in the lottery. Ogletree Deakins’ Immigration Practice Group will continue to monitor developments that affect business immigration law and will provide updates to employers as information becomes available.