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Missed the Annual H-1B Visa Lottery? Alternative Visa Solutions Remain Limited for the Best and the Missed the Annual H-1B Visa Lottery? Alternative Visa Solutions Remain Limited for the Best and the

Missed the Annual H-1B Visa Lottery? Alternative Visa Solutions Remain Limited for the Best and the Brightest

Once again, U.S. Citizenship and Immigration Services (USCIS) has announced that it received enough electronic registrations from American employers to reach the maximum number of new H-1B specialty occupation visas authorized by Congress for Fiscal Year 2022. Employers whose registrations were selected have now been invited to file H-1B petitions during a 90-day period for the workers with selected registrations.

While USCIS may conduct an additional random selection from the registrations over the summer to reach the statutory cap (as it did last year), many employers are actively exploring alternatives to the H-1B specialty occupation visa. Some of the more viable alternative work visa solutions include the following:
  • If foreign national employees are working pursuant to F-1 Optional Practical Training (OPT), the employees may be eligible for a two-year extension of OPT if their degree was in a recognized STEM field. The employees will need to coordinate the STEM OPT extension process with their universities.
  • There are several work visas available only to citizens of certain countries, based on certain free trade agreements. Specifically, citizens of Canada and Mexico can qualify for the TN professional work visa if they will work in certain professions, based on the new U.S.-Mexico-Canada Agreement, the successor to NAFTA. Citizens of Australia can qualify for the E-3 professional work visa, while citizens of Singapore and Chile can be sponsored for the H-1B1 professional work visa in the U.S. by their employers.
  • Some individuals may qualify for the O-1 individual of “extraordinary ability” visa. Often, scientists, academics, and researchers more easily qualify for this visa type, as it requires extensive documentation of one’s achievements, but those with prominent achievements in other settings and industries may also qualify.
  • If a U.S. employer has an international presence, with entities outside the United States, the employer may be able to sponsor individuals for L-1 intracompany transferee or E-1/E-2 treaty trader/investor visas:
    • The L-1 visa requires an employee to work for at least one (1) year outside the U.S. for an entity related to the U.S. employer, in a managerial/executive or specialized knowledge position and that the employee will hold a managerial/executive or specialized knowledge position in the U.S.
    • The E-1/E-2 visa is only available to individuals (or their employers) that engage in significant trade or investment in the U.S., where the employee shares the nationality of the foreign-owned trading or investing entity abroad and where the U.S. has a specific trade agreement with the country in question.
While not an exhaustive list, these visa options are some of the more common ways in which individuals not selected in the H-1B lottery may continue to qualify for employment sponsorship in the U.S. Employers are encouraged to consult with qualified immigration counsel to assess strategy and explore options. Please contact Jenifer Brown or Christl Glier or another member of the Ice Miller Immigration Practice with questions regarding the H-1B lottery, alternative visa solutions or any other business immigration matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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