Not Feeling Lucky About This Year’s H-1B Visa Lottery? Important Considerations for Employers of Highly Skilled Foreign Workers

Authored by Diane E. Metzger

Mar 31, 2015

On Apr. 1, U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting cap-subject H-1B petitions for this fiscal year’s H-1B “Cap.” For immigration attorneys, Apr. 1 brings some relief as the H-1B Cap files are “out the door.” For employers of highly skilled foreign workers however, the wait continues as employers await confirmation that their H-1B Cap application was selected in the H-1B “Visa lottery.” If not selected, the employer may not be able to hire the foreign worker or, if the foreign worker’s current work authorization is expiring, the employer may lose the employee when the employee departs the country after his/her work authorization ends. Hence, the stakes are high for employers and foreign workers alike.

Employers whose applications are not selected in this year’s H-1B cap should not be too quick to throw in the towel. If the foreign worker is a graduate of an accredited U.S. university with a degree in a STEM field and is working pursuant to his/her student status and OPT work authorization, the employee may be eligible for an additional 17 months of OPT work authorization. If this is the case, it is recommended that the foreign worker apply for his/her OPT STEM extension as soon as possible, lest they lose out on this very important work authorization benefit.

Secondly, with careful planning, it may be possible to retain the foreign worker with another visa classification or by sponsoring the employee for employment-based lawful permanent residency. In addition to the much coveted H-1B visa, some foreign workers may be eligible for an intracompany transfer visa, or depending on their country of citizenship, another visa option such as a TN or E-3 visa. Foreign nationals from countries such as Mexico, Canada, Singapore, Chile and Australia may have additional treaty-based visa options available to them.

Thus, while H-1B employers and foreign workers should certainly hope for the best this H-1B cap season, they should nonetheless take action now to strategize with their immigration counsel to plan for the worst. As USCIS is anticipating receiving even more applications than last year (when approx. 172,500 applications were received in the first five business days of April), thousands of H-1B cap applications will once again be rejected leaving many employers looking for alternative ways to cope with being unlucky in this year’s H-1B Cap.

Under current U.S. immigration laws, the numerical limit for H-1B visas for each government fiscal year is approximately 65,000 for the “regular” cap, with an additional 20,000 H-1B visas reserved for foreign workers holding a U.S. Master’s degree from an accredited institution (the “Master’s cap”). There has been a steady increase in H-1B filings in the past few years, and in 2013 and 2014 the H-1B Cap quota was filled during the first week of filing, thus triggering the H-1B “lottery.” While some employers are exempt from “the cap,” most are not.

If you have any questions about the H-1B visa or any other business immigration matter, please feel free to contact Diane Metzger.

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