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2020 H-1B Alternatives

United States Citizenship and Immigration Services indicated it received approximately 275,000 registrations for the available 86,000 slots in the most recent H-1B registration/lottery. With the initial selection complete, employers not selected should consider alternative options – a process that can be daunting any year, and especially now as COVID-19 closures impact USCIS and consular processing. If you have questions or need help planning an immigration strategy for a skilled professional, contact us for a free consultation.

H-1B Re-Selection

New this year under the H-1B registration process is the opportunity for “re-selection”. That is, if the USCIS determines that an original selectee is not eligible for H-1B status, then the USCIS will look back to the original pool of applicants and select a new “selectee” from the remaining unselected applicants. Though this is a welcome addition to the process as it should ensure that all 86,000 H-1B slots are used in a fiscal year, one should not put all of their “eggs into this basket” in the hope of being able to work and live in the United States. With only an original 31% chance of being selected this year, the chances grow slimmer in re-selection. With approximately 189,000 applicants still available, even if the USCIS has 10,000 (which would be an extremely large number) of H-1Bs that are deemed “ineligible”, that leave only a 5% chance of being selected in the re-selection process. In short, employer and H-1B applicants need to look at other alternatives outlined in this report.

Employer-Sponsored Green Cards

Our primary recommendation for all employers who have identified an individual who will be asset to their business is to “GO ALL IN” and sponsor the individual for permanent resident status (aka “Green Card). Often times, for H-1B candidates, this means beginning the PERM (or labor certification) process as soon as possible.

One thing we have learned through our broad experience is that there is no such thing as a routine petition, and it can not be assumed that any petition – no matter how well documented or supported – will be approved. Engaging valued foreign national team members in the green card process will give them peace of mind and will provide you, the employer, with an opportunity to maintain or begin their employment at your organization.

During the PERM process, you will be required to show there are no minimally qualified US workers ready, willing, and able to fill the offered position. From start to finish, the PERM process takes between 10 months and a year. The Department of Labor is continuing to update PERM requirements due to COVID-19 work at home orders, and we are not seeing significant disruptions to the process at this time. If you have questions about the PERM process, we are happy to offer complimentary consultations. Once the PERM process is complete, many employees are eligible to file their I-140 and I-485 applications concurrently. All employee will move into the I-140 process, but those that can file a concurrent I-485 Application have the ability to secure an Employment Authorization Document (EAD) with that filing while they wait out the completion of the green card process. This EAD allows that individual to continue or begin employment with your organization and continue in that employment until completion of the green card process. Once the green card is issued, this US Lawful Permanent Resident Status will provide the individual with continued authorization to work for you.

Other H-1B Visa Alternatives

An employer might not be ready to undertake the PERM process, and there are several nonimmigrant options to sponsor skilled professionals outside of the H-1B or green card process including:

  • O-1 visa – If the candidate has an advanced degree, extensive publications/citations, awards in their field, and/or other evidence to show they are one of the leading individuals in their field of work, an employer can sponsor on an O-1 Visa;
  • TN visa – If the candidate is a citizen of Canada or Mexico, an employer can sponsor on a TN visa;
  • E-1/E-2 visaIf the candidate is from an E Treaty Country, the candidate may be able to start their own company as a trader or investor. This company then could contract out the candidate’s services to your organization in a role similar to that of the H-1B application. See our E Visa Guide for more information;
  • Placement of the Candidate in an Overseas Office – If the candidate fills a specific need for your organization and there is potential for that need to be filled from an overseas location of your company, you can consider placing that employee overseas for a 12 month period working for your organization in a branch or affiliated office. After completion of 12 months of employment, you could consider transferring that employee to the U.S. in L-1. For more information on the L Visa, download our free Guide.  
  • E-3 visa – If the candidate is a citizen of citizen of Australia, an employer can sponsor on an E-3 visa;
  • H-1B1 – If the candidate is a citizen of Singapore or Chile, an employer can sponsor on an H-1B1 Free Trade application;
  • The Foreign National Employee could enroll in a Master Degree or other degree program to maintain their F-1 status and continue in employment, albeit part-time, with the Employer under F-1 Curricular Practical Training. See our F-1 Visa Guide for more information;
  • The Foreign National Employee could depart the US for a 90-day period upon completion of the OPT status, and then apply for a J-1 Trainee status to continue in their entry-level employment/training; 

COVID-19 Impacts on L and E Visas

USCIS is still accepting applications for all work visas, including E-2, L-1 and TN visas, but consular processing has been suspended for routine visas. While paperwork can be submitted for consular processing of work visas, Consulates are not holding appointments or issuing visas at this time. This is a fluid situation – click here for the most current information on consular processing.