My employee’s registration wasn’t selected in the H CAP lottery – now what?

The H-1B nonimmigrant visa category allows employers to sponsor foreign nationals to 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 area of specialization. There is an annual limit or “cap” on H-1Bs of 65,000, with an additional 20,000 slots assigned to individuals possessing a U.S. master’s degree or higher. In order to allocate the H-1B numbers, USCIS conducts registration as a lottery process because there are far more foreign nationals that apply for H-1B visas than are available.

If your company registered one or more candidates who weren’t selected in the lottery, there are some alternative nonimmigrant visa categories for your company to consider. A conversation with Zulkie Partners can help you determine the best path forward for the candidate you want to hire.

Optional Practical Training/Curricular Practical Training

• International students who graduate from a post-secondary institution may be eligible for a 12-month period of Optional Practical Training (OPT) employment authorization in a field related to their degree. Those who have graduated with a degree in a STEM field and who are employed by a company participating in the U.S. government’s E-Verify program may extend the initial period  of OPT for an additional 24 months.  Students still enrolled in school may qualify for employment  authorization through a period of Curricular Practical Training (CPT) but must still maintain a full course of study.  Students should  coordinate with their school’s Designated School Official to seek OPT or CPT work authorization.

Work Visas Based on Nationality

Some nonimmigrant employment visa categories are available to citizens of specific 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 available to citizens of Australia. The requirements for the category are similar to an H-1B.
• 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” that are specifically listed in the USMCA.

Treaty Traders and Treaty Investors

• Nationals of certain countries part of 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.
• Similar to the E-2 visa, the E-1 Treaty Trader 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 Executives, managers and certain essential employees with the same treaty nationality as the company employing them may also qualify for an E-1 or E-2 visa.

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 and sustained national or international acclaim. The individual must prove they are among a small percentage who have risen to the top of their field.
• 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. O-1B temporary workers are typically sponsored by an employer or agent petitioner.

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 of the United States. The job-related training must generally be unavailable in your home country and must not involve substantial productive employment in 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 the Department of State. Individuals who are recent graduates of a foreign college or university may alternatively qualify as J-1.

Temporary Assignment Abroad

• If your company maintains offices in more than one country, it may be worth inquiring if there are job opportunities outside of the United States for which the foreign national may qualify. You may pursue appropriate nonimmigrant visa options such as those listed above for the foreign national or you may seek an L-1 intracompany transferee visa for the foreign national after they have been employed abroad with your foreign office for at least one year in an executive, managerial, or specialized-knowledge position. Note: the foreign national must return to their country of nationality to work, otherwise your company may also need to get them a work visa for the other foreign country in which they would work.

Move Straight into 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 your company or having the individual self-petition. If the foreign national is to be sponsored by an employer, it may be necessary to first request certification from the Department of Labor.

If you have any questions about the options outlined above, Zulkie Partners would love to work with you!