Not Selected In H-1B Cap Registration? There Are Options! – Work Visas

Foreign workers fill a critical need in the U.S. labor market,
particularly in the professional and technological fields such as
science, technology, engineering and mathematics (STEM). To fill
this need, U.S. employers submit H-1B temporary worker visa status
registrations with the United States Citizenship and Immigration
Services (USCIS), which is a lottery-based system where
registrations are selected from the congressionally allotted quota
of 85,000. For the fiscal year 2024-2025, the registration period
closed on March 22, 2024, and the selection of the 85,000
registrations occurred within six days. USCIS has yet to publish
the percentage of selections, but it is likely, as happens every
year, most employers’ needs will not be met. For registrants
not selected for the first round of the H-1B cap, it is possible
that there may be additional rounds of selections as historically
seen in prior years. This occurs when USCIS has not received
sufficient H-1B applications to meet the 85,000 annual quota, or
when submitted petitions are rejected and slots re-open.

Apart from re-submitting the registration the year after,
registrant companies may still have avenues that they can
explore/use to retain or hire the foreign workers who were not
selected. The following provides an overview of the common visa
classifications available as alternative pathways to retain and or
hire talented foreign workers:

H-1B with cap-exempt employer: Employers that qualify
as being “cap-exempt” may hire foreign workers in H-1B
status. “Cap-exempt” employers include non-profit
research organizations, government research organizations, higher
education institutions or related non-profit entities. Cap-exempt
H-1B visa holders may be permitted to remain in H-1B status for up
to six years with additional extensions if certain requirements are
met.

F-1 student status: Most foreign nationals who graduate
from U.S. universities are eligible to receive work authorizations
for 12-month Optional Practical Training (OPT) and if in a
qualifying STEM field, an additional 24-month period (subject to
certain conditions). If not selected in the H-1B cap, employers may
hire or continue to employ the student until the expiration of
their OPT or STEM OPT. It should be mentioned that the work must be
directly related to their major of study.

H-1B1: Employers may take advantage of the H-1B1 visa
program to employ professionals in specialty occupations who are
citizens of Chile and Singapore. Although there is a limited annual
quota of 1,400 in this category, it is seldom filled, and visas
remain available for employers to utilize. The period of employment
is one year with the option to renew indefinitely.

E-3: Another great option to hire professionals in
specialty occupations is the E-3 program, which employers can
utilize to hire citizens from Australia. The E-3 visa
classification is limited to 10,500 nationals of Australia but like
the H-1B1, is seldom filled and readily available. The period of
employment under E-3 is up to a maximum of two years with no limit
on renewals.

L-1: The L-1 intracompany transferee classification is
also a useful category as an alternative to the H-1B if the
regulatory requirements are satisfied by both employer and foreign
national. This classification is beneficial for an employer to
transfer its managerial/executive (L-1A) or specialized knowledge
(L-1B) personnel from the qualifying employer overseas to join the
U.S. counterpart. There are no annual quotas for L-1 classification
and foreign national may be employed for seven or five years
depending on the nature of the L-1 position.

E-2 employee: The E-2 essential employee is yet another
avenue that employers can explore as an alternative in lieu of the
H-1B. The criteria to be met is that the employee must be of the
same nationality of the investor or company/enterprise that has
majority ownership in the business. The employee can be a
manager/supervisor or even a worker with special skills making them
essential to the running of the business. The advantage of the
category is that there is no quota on the number of employees
permitted and the E-2 visa employee can obtain the visa directly at
the consulate of the employee’s home country without prior
petition approval.

O-1: The O-1 classification is also a practical
alternative for employers in cases where cap registration was not
selected for the foreign national employee. However, to qualify
under O-1, the foreign national must be able to demonstrate that
they possess “extraordinary ability in the sciences, arts,
education, business, or athletics and have been recognized
nationally or internationally for those achievements” and have
“sustained national and international” acclaim. There is
no annual quota, and the O-1 category provides initial employment
authorization of up to three years with options for indefinite
extensions.

TN: The TN classification is a very commonly utilized
program by employers to hire qualifying individuals who are
citizens of Mexico or Canada. There is no annual quota prescribed
for this category but the TN position to be filled must fall within
the occupational categories listed in the Appendix A of the United
States Mexico Canada Agreement (USMCA). Foreign nationals granted
TN status may be granted employment authorization for an initial
period of up to three years with the indefinite option for
renewals.

As previously stated, only the commonly utilized non-immigrant
visas have been enumerated above and this not an all-inclusive list
of the available options. Since every visa classification has
eligibility requirements that must be met to qualify, employers
should contact knowledgeable immigration counsel to assess which
visa category is proper to hire talented foreign workers to suit
their needs.

Therefore, there is some is hope for employers and foreign
nationals as there are multiple routes available to employers that
can serve as a replacement for the coveted H-1B status.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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