I Didn’t Make the H-1B Lottery – Now What?

FY 2014 H-1B Lottery  is a major disappointment to business and potential employees

Unbeknownst to most of us, the economy has kicked up enough steam to bring forth the annual spring time run on H-1B visas that we haven’t seen since 2008. Within the first five days of April, USCIS received 124,000 H-1B petitions for 65,000 regular H-1B slots and the 20,000 set aside each year for applicants with graduate degrees from U.S. universities. Hence the use of a lottery for this fiscal year, as mandated by regulation.

The arithmetic tells us that close to half of the filed petitions will not be chosen. What is the employer and future employee to do until April 1, 2014 when we go through this same merry-go-round again?

Here are some thoughts regarding visa options until you can file again for an H-1B, starting April, 2014:

1.  Business Visitor:  If the potential employee is employed by an overseas affiliated company, the individual may enter as a business visitor on behalf of the foreign company either on the visa waiver program for up to 90 days, if from a visa waiver country, or on a B-1/B-2 visa. Of course the potential employee cannot enter the U.S. to work but may enter to discuss and confer with colleagues, negotiate with clients and sign contracts on behalf of the foreign employer. As a business visitor, the potential employee must remain on the foreign company’s payroll the entire time and must not be coming to work in the U.S. Work is defined as paid employment.

2.  J-1 visa:  If appropriate, and if the potential employee qualifies, the employer could design a training program for the potential employee that would at least allow her to be trained and paid in the U.S. by the employer until the H-1B petition could be filed next year.

3.  Spouse on J-1 visa:  The potential employee’s spouse could arrange to be accepted into a college program as a J-1 exchange visitor student so that the potential employee can be a J-2 visa holder and thereby qualify to apply for a work permit which would be issued in 90 days from the date of filing. As a J-2, the potential employee would be authorized to work in the U.S. at least until the employer tries again next year to get her on board in H-1B visa status.

4. H-1B concurrent status:  The potential employee could be employed by a local university or college in H-1B status for approximately 15 hours a week in a professional position commensurate with her background. Colleges and universities are not subject to the H-1B cap and H-1B employees are not required to begin work on October 1 of each year.  The potential employee would have to be employed on a part-time hourly basis and she must be on the university or college payroll. The exact salary that would be required to be paid would depend upon:

a. job title;

b. job duties;

c. county in which she would be employed.

Minimum salaries, or the prevailing wage, are set by the Department of Labor according to the county in which the work is to be performed.

While on an H-1B for a university or a college, the potential employee could SIMULTANEOUSLY be on an H-1B for your company without being subject to the H-1B cap as long she continues the academic employment. That means that as soon as she has been granted the university H-1B she could simultaneously apply for an H-1B with your company at any time and begin working with your company at any time without worrying about the cap, the April filing date or the October start date.

H-1B visas are issued for up to three years and can be renewed for another three years for a total of six years altogether. To qualify for another six years, the H-1B employee would have to be physically outside of the US for at least 12 months.

5.  O-1 visa:  This visa is for foreign nationals of extraordinary ability in a specific field. The O-1 visa does not require a specific salary and is good for up to three years, renewable one year at a time. This is very time consuming and evidence intensive to prepare and requires a great deal of evidence to document the potential employee’s “extraordinariness”.

6.  L-1A visa:  If appropriate, and if there is a qualifying overseas company, the potential employee could work in an executive or managerial position for the overseas company for at least twelve months out of three years prior to the visa application, and then apply for a transfer to the U.S. in a similar position. The L-1A can be extended up to seven years and in the right circumstances gives a straight pathway to the green card by bypassing the U.S. labor market.

With the right kind of planning and if the moon and the stars are aligned it may be possible to bring your foreign national potential employee into the U.S. to either visit or be trained or even to begin work in another visa category until we must face next year’s H-1B lottery.


Article categories: Work Permits

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