H-1B alternatives that are a must-read for those who were eliminated in the lottery
On March 29, USCIS announced that it had completed their computerized lottery for 2022’s H-1B pre-registered cases. Only applicants selected in this lottery are able to file their H-1B petition with the USCIS between April 1 to June 30. We understand that those who were not selected must be worried about their future plans for living and working in the U.S. Although the USCIS held additional H-1B lotteries in July and November of 2021, the number of additional selected beneficiaries were very small compared to the total number of H-1B workers, and we do not recommend our clients to rely on additional lotteries as a way to maintain status. We encourage our clients to consider the following alternative opportunities and select those that suit their situations.
If you are a recent graduate and are currently in an OPT program, inquire whether you qualify for a two-year extension under a STEM OPT program. If your major allows a two-year extension, you must coordinate with your employer and educational institute to apply for the STEM OPT program within 90 days before your current OPT program expires. Please refer to the link https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf to assess whether you are eligible for a STEM OPT extension:).
For those that are not eligible for STEM OPT programs, work visas other than the H-1B may be considered. For example, a visa that is considered an alternative to the H-1B is the O-1 visa. O-1 visas are granted to individuals with outstanding skills or achievements in the fields of science, arts, education, business, sports, or movie production and television. Key differences from the H-1B is that beneficiaries may apply for their O-1 visa at any time; if approved, a maximum 3 year period of stay is granted; and unlimited extension are possible. In addition, agents may petition/sponsor the visa, allowing beneficiaries to apply even if they haven’t immediately found an employer, which also enables beneficiaries to work for multiple employers and projects as freelancers. SONG LAW FIRM has successfully handled O-1 petitions for graphic designers, visual artists, fashion designers, industrial designers, jewelry designers, architecture and interior designers, musicians, painters, engineers, researchers, entrepreneurs, athletes, chefs, actors, and film and TV professionals.
If you have at least 1 year of working experience at an overseas company and are looking for employment at a U.S. company that is a related affiliate or subsidiary, another alternative to the H-1B is the L-1 visa for intracompany transferees. The L-1 visa has two categories: the L-1A visa for executive/manager-level employees, and the L-1B visa for staff-level employees that possess specialized company knowledge. The period of stay for L-1A visas may be extended up to a maximum of 7 years, while the L-1B visa may be extended up to 5 years.
If you are not eligible for any of the above visas, the E-2 might be suitable for your situation. E-2 visas are only for those that hold the nationality of countries that have signed the Treaty of Commerce and Navigation with the U.S., and the beneficiary must hold the same nationality as the petitioner/sponsor in the U.S. Apart from the fact that no previous work experience is required, the E-2 is similar to the L-1 visa in that it is mainly for executive/manager-level employees and staff-level employees that possess specialized company knowledge. Alternatively, you may obtain an E-2 visa through a business that you invested in. There is no set amount for the investment, as long as the amount sufficiently covers the actual costs needed in establishing the company and maintaining business for 6-12 months. The advantage of the E-2 visa is that once the visa is approved there are no limits to the number of extensions, which are granted in 2 year increments.
In addition to the above visas, you can also explore ways to petition for employment based immigration. A common misunderstanding is that the beneficiary needs to be working for the petitioning/sponsoring company when applying for employment based immigration. This is not true. According to the regulations, approval of an employment based immigration petition is premised on working for the petitioning/sponsoring company after the petition is approved. This means a person only needs to maintain legal status while the petition is pending adjudication, as long as other conditions are met. For example, even persons under a F-1 student visa may apply for employment based immigration, and persons eligible for CPT programs may simultaneously study and work while waiting for the USCIS to adjudicate their petitions.
There is no need to give up your dreams just because you were not selected in the H-1B lottery. If you need more advice on work visas, we recommend that you seek the advice of an immigration attorney. If you have any additional questions about the contents of this column, please contact us at firstname.lastname@example.org.