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FY2022 H-1B Alternatives

The H-1B Registration period ended on March 25 and the H-1B Lottery Selection period has begun. Currently, we are seeing about a 30% selection rate among all filers, which suggests one of two things: (1) either the number of applicants is up for this fiscal year; or (2) USCIS is only partially into the selection process with more to come over the next few days.

Because USCIS has not issued any guidance at the moment, we are left with only speculation at the moment. However, assuming that only a few more selections are forthcoming, employers are now left with the option of – what’s next? What do I do for my candidate that was not selected?

Top H-1B Alternatives

  1. STEM OPT Extension – If you are an E-Verify employer and your candidate is enrolled in a STEM-qualifying program, the candidate can seek to extend their current F-1 OPT status for an additional two-year period. (Caveat – if you are not enrolled in E-Verify, you should explore, with counsel, the pros and cons of enrollment prior to signing up).
  1. F-1 Re-Enrollment: Many F-1 students choose to enroll in a new F-1 program (new degree level or field) to continue their stay in the US and some, if not many, of these F-1 programs will allow students to engage in either P/T or F/T Curricular Practical Training with their current organization. F-1 reenrollment allows an individual to continue their employment in some capacity during their studies.
  1. Employment Outside the U.S.: Is the candidate’s position one that can be completed, at least temporarily, remotely from outside the U.S.? Does your organization have a facility outside the U.S. where the candidate can be placed? Can the employee be placed with a contractor of your organization outside of the U.S. to complete the core duties of his position? If any of these questions can be answered “yes”, then these should be further explored with your internal team and counsel.
  1. Permanent Residence: Is the candidate currently under an F-1 OPT STEM Extension or working for you under a different nonimmigrant status? Candidates with more than a few months of time left on their existing stay in the U.S. may have time to be properly sponsored for U.S. Lawful Permanent Residence as an alternative.
  1. Other nonimmigrant visa options: If the individual from Canada or Mexico, the TN visa may be an option. Australia, such that the E-3 could be considered? Chile or Singapore, such that the H-1B1 Free Trade may be an option? Is the candidate from an E Treaty Country such that the candidate could consider investing in their own “consulting” business and contract their organization’s services to your organization? Does their resume make you say “wow” such that you might want to consider the O-1 option?

If your candidate is not selected in the FY2022 H-1B Lottery, it doesn’t necessarily have to be the end of the line for your candidate. If you wish to explore some potential options with your candidates that were not selected in the H-1B lottery, we offer complimentary consultations.