In the past few years, the demand for H-1B visas has far exceeded the supply. Many foreign nationals with job offers from U.S. companies find themselves unable to secure a spot in the so-called “H-1B lottery,” which would allow them to work in the United States.
Do individuals and the businesses who wish to employ them have any options when falling into the unlucky majority of those whose H-1B petitions were not selected in the lottery? There could be plenty – including those for STEM or Tech investors and entrepreneurs in particular.
MacDonald Hoague & Bayless can help. We are leaders in immigration law, and for more than 60 years we have provided the highest quality legal service to people and businesses throughout the Pacific Northwest and across the United States.
The following information is intended to provide general information about visa laws and possible options. It is not intended to provide legal advice or guidance as to whether these laws and possible options apply to you. Advice can only be provided by a qualified attorney, and then only after he or she has carefully reviewed the facts of your situation.
Problem: Limited Number of H-1B Visas Each Year
Why is it so difficult to secure an H-1B spot? Congress set a maximum cap of 65,000 H-1B visas for each year. An additional 20,000 such visas are available for individuals with a U.S. master’s degree. This cap applies to private employers of any size and shape, and only institutions of higher education and certain non-profit research organizations are exempted. When the government receives more H-1B petitions than it can approve per the cap, it has to resort to a “lottery” to determine which cases it will adjudicate. In the past few years, the cap has been met and far exceeded within the first five business days of the filing season, resulting in a less than 30% chance for an applicant with a bachelor’s degree.
Possible Options include the following:
STEM OPT Extension
A significant portion of the H-1B beneficiaries are foreign students who have recently graduated and are employed with one-year work authorization based on Optional Practical Training (“OPT”). For a graduate with a Science, Technology, Engineering or Math (“STEM”) degree, the regulation allows a 24-month extension of this OPT work authorization. This means a STEM student can have up to three years of work authorization after graduation. With the STEM OPT, even if the H-1B petition is not selected in the lottery in the first try, there is sufficient time for at least another try in the following year – increasing one’s odds.
Return to School
There is also a possible viable option with potential benefits for students who have the capacity and interest to go back to school. First, the student may advance from a bachelor’s degree to a master’s degree, which carries a higher chance of winning the H-1B lottery in the future. Second, this presents an opportunity to study in a STEM field if the previous degree was in a different area – and as noted above, the STEM field focus may also increase one’s odds in a future lottery.
If one does decide to go back to school, however, it is important to check the school’s reputation to root out potential fraudulent schemes. In recent years, the Immigration and Customs Enforcement department (“ICE”) has been cracking down on schools for allowing students to obtain work authorization without attending classes. Past or current association with such schemes may seriously jeopardize a foreign student’s immigration status down the road.
Overseas Experience
Companies with subsidiaries or affiliates abroad may also be willing to assign their new hires to an overseas branch of the company for one year to gain experience and knowledge. After one year of employment abroad at such an affiliated branch or unit, a company may transfer a “specialized knowledge” employee to a U.S. branch, subsidiary, or parent in L-1 visa status. However, to qualify for this status, the L-1 beneficiary must have at least one year of working overseas for an affiliated entity in a specialized knowledge capacity, before he or she is eligible for such a transfer.
Investment Treaty
If you are a citizen or national of a country that has a treaty agreement with the United States, and if you have the capacity to start and direct a business of your own, you may also want to consider treaty investment visas. These include E-1 and E-2 visas for treaty traders and treaty investors who are nationals of treaty countries with the US. The US State Department publishes a list of the treaty countries. In addition, there is also E-3 visas for Australians; TN visas for Canadians and Mexicans; and H-1B1 visas for Singaporeans and Chileans. E-3, TN, and H-1B1 visas are very similar to H-1B, with the advantage of either not having a cap or having a cap that historically has rarely been reached.
Persons of Extraordinary Ability
There are also O-1 and visas for persons of “extraordinary” ability. These visas may also help the increasing numbers of highly trained foreign professionals who are shut out of the H-1B visa program by the annual cap.
New Options for Entrepreneurs
Aside from the above traditional options, there is also a brand new and exciting development which has a potential of benefitting foreign entrepreneurs. Recently, the immigration service rolled out a proposed rule for “paroling” foreign entrepreneurs who have a significant ownership interest in start-ups that receive substantive investment or grants or have the potential for rapid growth. It is important to note that such parole is not a standard immigration status. While it may allow employment authorization, it does not by itself lead to any other immigration status. This option may, however, serve as an effective transient step while the individual is trying for an H-1B or an employment-based green card.
Diversity Visa Lottery
Finally, don’t forget that there is another “lottery” to play. Based on historical immigration statistics, the US State Department designates a list of countries whose natives are eligible for the diversity visa lottery, or commonly known as the “green card lottery.” The time frame to apply for the diversity lottery is usually October or November. At the very least, it may be a good idea to apply for the diversity lottery while exploring other options, including the H-1B option.
MacDonald Hoague & Bayless can help.
The diverse immigration team at MacDonald Hoague & Bayless has extensive experience in representing both companies and individuals on a variety of immigration issues.
Our corporate clients, from Fortune 500 companies to start-ups, span across industries, including IT, gaming, telecommunications, product design, manufacturing, aerospace, sports, and the arts. We also assist individuals with employment and family-based green card and visa issues, and help clients resolve immigration issues stemming from criminal history.