My H-1B Cap Petition Was Not Accepted…Now What?

On May 2, 2016 USCIS announced that it completed data entry of all Fiscal Year 2017 H-1B cap-subject petitions. If you have not received notification by now that your petition was accepted, it is highly likely that yours was not selected and will be returned. The H-1B visa has emerged as the most popular nonimmigrant employment category for U.S. employers, allowing companies to recruit recent foreign graduates of U.S. universities and providing a path to permanent residence. However, in recent years, they have also become a highly sought-after and difficult to obtain classification. H-1Bs are limited, or “capped”, at 65,000 new cases per year, with an additional allotment of 20,000 for graduates of U.S. Master’s degree programs. Each year, the demand for new H-1Bs has increasingly exceeded this limitation, with upward of 236,000 petitions filed this year. This leaves over 150,000 applicants, nearly two-thirds, rejected from USCIS’s randomized lottery acceptance process. While some bipartisan efforts have emerged to raise the cap to meet the demands of U.S. employers and foreign students who wish to pursue a post-graduate career, Congress is overwhelmingly unwilling to increase the number of new H-1Bs.

The current scheme leaves many faced with the very real possibility that they will run out of time in F-1 post-completion Optional Practical Training or other work-authorized status. Many of this year’s rejected cases represent their second or third attempt for H-1B status. If you have found yourself in this difficult circumstance, you may have other options available that can allow you to remain employed in the United States. Below is a listing of just some of the options that we have secured for diverse professionals from across the world:

STEM OPT Extension

As explained in our earlier blog post, the rules regarding STEM OPT extensions changed as of May 10, 2016, increasing the extension period from 17 to 24 months. This can help students remain authorized for employment while possibly allowing two more attempts at acceptance in future H-1B lotteries. However, the STEM extension process is much more complicated than previous years, requiring preparation of a formal training plan on Form I-983, as well as new attestation requirements for both students and employers. This requires cooperation from students and employers to ensure that the training plan is both accurate and adhered to, and that it also meets legal requirements. If you are considering a STEM extension and need additional guidance through the process, we would be happy to speak with you and assist.

Back to School

Did you know that all of the 30 fastest-growing occupations in the next decade will require at least some background in STEM? It’s no wonder that 50% of post-graduate degrees in STEM at U.S. universities are awarded to foreign nationals. Master’s degrees from a U.S. college or university, particularly ones in a STEM discipline, can prolong your employment authorization, enhance your employability, and increase your chances of obtaining an H-1B visa upon graduation. As mentioned above, USCIS allots an additional 20,000 H-1B visas for graduates of U.S. Master’s programs, which may help your chances of obtaining an H-1B. In the meantime, while you are earning your degree, you may also remain employed throughout your Master’s program via Curricular Practical Training. A U.S. Master’s degree in a STEM field is also a viable option for liberal arts graduates who are not eligible for a STEM extension. A STEM degree in a Master’s program that combines business and technology, such as Management Information Systems, can be very helpful to your job search. Additionally, a Master’s degree in a STEM field will entitle a graduate to a STEM OPT extension after graduation. Although pursuing post-graduate education carries many benefits, the potential financial burden is substantial, and it is a serious decision that requires significant consideration.

J-1 Trainee or Intern

J-1 visas are offered for specific areas in the private and public sector to provide for cultural exchange. In certain circumstances, the J-1 Trainee and Intern categories can serve as an alternative to an H-1B. However, an important distinction from the H-1B visa is that their educational credentials must have been earned outside of the United States. Also, while J-1 Trainees and Interns can be paid, it is important to remember that the foreign national must take part in a bona fide training program, the details of which must be completed and submitted to the Department of State through a DOS-certified sponsor. When considering the possibility of a J-1 visa, one must keep in mind the two-year home residency requirement of Section 212(e) of the Immigration and Nationality Act. Based on one’s home country and the subject matter of their training program, you may be required to return to your home country for two years before you are allowed to pursue an H-1B visa or permanent residence in the United States.

L-1 Intracompany Transferee

If you have worked for a branch, affiliate, subsidiary, or parent company of your potential employer for more than one year out of the past three years, you may qualify for an L-1 intracompany transferee visa. The L-1 visa has two subcategories: L-1A for executives and managers, and L-1B for workers with “specialized knowledge” gained at the entity abroad. The position in the U.S. must be either managerial or utilize that same specialized knowledge gained abroad. An L-1B visa is valid for five years while an L-1A is valid for seven. Other attractive aspects of the L-1 visa are that spouses in L-2 dependent status are eligible for employment authorization and, like H-1Bs, they are “dual intent”, meaning you may seek permanent resident status without violating nonimmigrant status.

E-2 Treaty Investor

According to the Partnership for a New American Economy, immigrants start 25% of all businesses in seven of the eight fastest-growing sectors of the U.S. economy. If you are a citizen of a country that maintains a treaty of commerce and navigation with the United States and you have the means to make a significant investment in the United States, you may qualify as an E-2 Treaty Investor. As an E-2 Treaty Investor, you must develop and direct the operations of an enterprise in which you have invested a substantial amount of capital. Although there is no set minimum level of investment, it must substantial and engaged in a real operating enterprise that exists before applying for E-2 status.

O-1 Visa for Extraordinary Ability

The O-1 visa is for foreign nationals who possess extraordinary ability in the sciences, education, business, athletics, or in the arts, motion picture, or television industry. Generally, extraordinary ability is demonstrated by sustained national or international acclaim with a job opportunity in the United States to work in that area of extraordinary ability. On its face, the O-1 category is difficult to prove; one must show that they are “one of the small percentage who has risen to the very top of the field of endeavor.” However, USCIS requires that you must meet at least three of eight listed criteria, which you can view here. If you think you may qualify for an O-1 visa or would like to learn more about the process, we would be happy to provide you with a consultation.

Trade Agreement Visas – TN, H-1B1, and E-3

If you are a national of Canada, Mexico, Chile, Singapore, or Australia, you may qualify for a visa based on a trade agreement between the United States and your country.

Canadian and Mexican NAFTA Professionals

Under the North American Free Trade Agreement (NAFTA), citizens of Canada and Mexico may be eligible for TN status. As a TN professional, you will be permitted to enter the United States and work in prearranged business activities for U.S. or foreign employers. A unique characteristic of the TN visa is that applicants must qualify to work in an occupational category on the Designated Profession List for TN Status. Generally, each of these professions require a baccalaureate degree as an entry-level requirement. As Canadian citizens do not need visas, they can apply for TN status directly at a U.S. port of entry (airport or border crossing). Mexican citizens can apply in person at a U.S. consulate in Mexico.

H-1B1 for Chile and Singapore

A variant of the H-1B visa, the H-1B1 was introduced as part of free trade agreements with Chile and Singapore. In many ways, the visa’s requirements are similar to the H-1B visa. The foreign national must come to the United States to work in a “specialty occupation” requiring a bachelor’s degree. H-1B1s are even subject to their own cap, with 1,400 allotted for Chilean nationals and 5,400 for Singaporean nationals. However, like the TN, H-1B1 beneficiaries can apply for their visa directly at a U.S. Embassy in their home country. Also, the H-1B1 is valid only for one year and can be renewed indefinitely in one-year increments, unlike the H-1B visa, which is subject to a six-year limit.

E-3 Visas for Australians

Under the Australia-United States Free Trade Agreement, the E-3 visa program began in 2005 for Australian citizens. It is similar in many respects to the H-1B visa, requiring a specialty occupation, a bachelor’s degree or foreign equivalent, and a certified Labor Condition Application. However, there are certain unique benefits. Spouses of E-3 visa holders may work in the United States unrestricted, even if they are not Australian citizens. The E-3 visa is also renewable indefinitely in two-year increments.

Employment Authorization for H-4 Dependent Spouses

If you are the spouse of an H-1B worker, you may be eligible for employment authorization. Generally, H-4 dependents of H-1B beneficiaries are not allowed to work in the United States. However, as of May 26, 2015, if an H-1B nonimmigrant is the beneficiary of an approved Form I-140, their H-4 spouse can file Form I-765 for an Employment Authorization Card.

Family-based Permanent Residence

Other than employment-based petitions, family-based immigration is the primary path to permanent residence in the United States. If you are married to a U.S. citizen, you are eligible to adjust status to permanent residence through filing Form I-130, Petition for Alien Relative, and Form I-485, Application to Register Permanent Residence or Adjust Status. However, USCIS applies a great deal of scrutiny to marriage-based permanent residence cases to ensure it is a “bona fide” marriage, or one that is not entered into for immigration benefits or based on fraud. If USCIS even suspects that a marriage is illegitimate, it can result in an unpleasant application process, ranging from surprise home visits by immigration officers to court proceedings and removal from the United States. You should only consider this option if you are in a legitimate marriage and want to remain in the United States with your spouse.

If you believe you qualify for one of the categories listed above or would like to learn more about your options, please do not hesitate to contact us for a consultation. We have assisted people from across the world in solving their unique immigration problems, and we would be happy to help you.

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