Fiscal Year 2017 H-1B Lottery is Over: What are the Options Now?

On May 2, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected in the computer-generated random selection process, or lottery. Since all 65,000 bachelor degree and 20,000 Master’s degree filings have been selected, USCIS will now begin returning all other H-1B cap-subject petitions. Due to the high volume of filings, USCIS is unable to provide a definite time frame for returning these petitions. However, it is expected that USCIS will commence returning petitions in June.

In the event that your employee is not selected for the H-1B lottery, you may want to explore the following options:

STEM OPT Extensions: If your employee has work authorization pursuant to Optional Practical Training (OPT), he or she may be eligible to extend his or her work authorization. Effective May 10, 2016, if your company is enrolled in E-Verify and your employee has a degree in a STEM (Science, Technology, Engineering, or Mathematics) field, he or she may be eligible for an increased 24-month extension of their post-completion OPT.  If your company is not yet enrolled in E-Verify, it is important that there is an understanding and consensus that enrollment in the program is in the best interest of the company. For instance, the company may need to allocate additional resources to implement and use the E-Verify program.

TN NAFTA Professionals: If your employee is a citizen of Canada or Mexico, he or she may qualify for a TN visa if: (i) the position qualifies as a professional occupation under the North American Free Trade Agreement (NAFTA), which includes professions such as Accountants, Engineers, Lawyers, Pharmacists, Scientists, and Teachers; (ii) there is a prearranged full-time or part-time position with a U.S. employer; and (iii) the employee meets the qualifications to practice in the profession in question. This visa classification is not subject to quota and can be obtained directly at the port of entry for Canadian nationals.

E-1/E-2: Treaty Traders and Investor: If your company is an enterprise or organization at least 50 percent owned by persons who have the nationality of a treaty country (a country with which the United States maintains a Treaty of Commerce and Navigation), your employee may be eligible for an E-1 or E-2 visa if he or she is also a national of the same treaty country. Some examples of treaty countries are China, France, Germany, Ireland, Italy, Japan, Spain, and the United Kingdom.  

To qualify as an employee of a treaty trader or investor, the employee must: (i) be the same nationality as the principal alien employer (who must have the nationality of a treaty country), (ii) meet the definition of “employee” under relevant law, and (iii) either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications. Duties which are of an executive or supervisory character are those which provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it. Special qualifications are those skills which make the employee’s services essential to the efficient operation of the business.

L-1 Intracompany Transferee Executive or Manager (L-1A) or Specialized Knowledge (L-1B): If your employee has been working abroad for your world-wide organization for one year or more, is an executive or manager, or is an employee with specialized knowledge, he or she may be eligible for an L-1 Intracompany Transferee visa. To qualify for this visa, the following criteria must be met: (i) the employer must have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate) for the duration of the beneficiary’s stay in the United States as an L-1; (ii) the employee must have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; (iii) the employee must be seeking to enter the United States to provide service in an executive, managerial or specialized knowledge role for a branch of the same employer or one of its qualifying organizations; and (iv) the employee must be qualified for the role and have the requisite experience.

O-1: Individuals with Extraordinary Ability or Achievement: If your employee has an impressive and lengthy professional history, he or she may qualify for an O-1 visa as an Individual of Extraordinary Ability. This visa is for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements. To qualify for an O-1 visa, the individual must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business, or athletics means a level of expertise indicating that the person is one of a small percentage who has risen to the very top of the field of endeavor. Extraordinary ability in the field of arts means “distinction.” This is defined as a high level of achievement in the field of the arts, evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is renowned, leading, or well-known in the field of arts.

Evidentiary criteria for this visa includes receiving a major, internationally-recognized award, such as a Nobel Prize. Alternatively, extraordinary ability may be evidenced by receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; published material in professional or major trade publications, newspapers, or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought; original scientific, scholarly, or business-related contributions of major significance in the field; performances as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements; or national or international recognition for achievements, shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications.

Green Card: Finally, you may consider sponsoring your employee for a green card. If your employee does not meet the requirements for any of the above visas, starting the PERM process or finding an alternative immigrant visa filing is another option that may be pursued.  

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