Alternative Visa Strategies in The Aftermath of The Record-Breaking April 2015 H-1B Lottery

clockbuildings_72DPI_RGBThe United States Citizenship & Immigration Service announced yesterday that it received nearly 233,000 H-1B visa petitions in the first week of the application window for the 85,000 cap-subject visas available for fiscal year 2016.  That record-breaking number means that nearly two-thirds of employers who prepared diligently ahead of the opening of the season, in many cases planning months or even a year ahead, have lost out in the visa lottery.

For the disappointed, what options are there other than waiting to take one’s chances in next year’s H-1B lottery, where the odds will likely be even worse if Congress does not act to raise the annual H-1B quota before then?

First, look hard at the “optional practical training” (“OPT”) statuses of recent graduates and new hires coming off of F-1 student visas.  As is often stressed in this blog, maximizing that OPT allotment can sometimes keep an employee around and working without a break in service until a second or even a third H-1B application season opens.  But doing so means being sure that a candidate or employee communicates with her university and takes full advantage of any STEM extension available to her, that the employer enrolls in the E-Verify program to permit such extensions, and, in some cases, even means planning ahead to coordinate graduation and hire dates.

Second, consider taking on lateral hires who have existing H-1B authorization to work for other employers.  While those candidates will not have the full six-year allotment of H-1B time that other hires would, petitions for laterals coming from existing H-1B positions with other employers are not subject to the annual H-1B cap, and hence can be filed at any time.

In scattered cases, there may also be narrower classes of visas available if employer, employee, and position meet certain criteria more specialized than the general “professional” requirements of the H-1B program.  Perhaps, for instance, a desired recruit can meet the “extraordinary ability” requirements of the O-1 visa, or is a Canadian or Mexican national eligible for a TN visa.  And for employers with overseas locations and flexibility on where to place candidates initially, it may be possible to start with a placement that allows an employee to gain managerial experience or “specialized knowledge” of the employer’s business abroad and then be transferred to a U.S. location with an L-1 visa.

As always, employers would also be wise to plan well in advance for possible H-1B hires for next year, so as to be in a position to file a visa petition at the opening of the season and have a chance in the lottery at all.  Particularly for those hiring in fields where qualified candidates are disproportionately foreign nationals in need of visas if they are to work in the U.S., that may mean making special efforts to forecast hiring and identify desirable candidates for next year now.

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