Options If You Do Not Win The H-1B Lottery

By Attorneys Devin M. Connolly & Nancy E. Miller

The U.S. Citizenship and Immigration Service began accepting H-1B petitions on April 1st.   Many nervous foreign-born college graduates are now anxiously waiting to see if their petition will be selected in the H-1B lottery.

The “H-1B lottery”, as it is often called, is necessary because the U.S. Citizenship and Immigration Service (USCIS) is only permitted to grant 85,000 H-1B visas per year.  A portion of those 85,000 visas, 20,000 to be exact, are reserved for people who have earned Master’s degrees from U.S. universities.  That leaves a mere 65,000 for those with Bachelor’s degrees hoping to lawfully work in a specialty occupation.  While the number 65,000 may seem high, the demand far exceeded the supply this year.  The USCIS announced that they received approximately 233,000 H-1B petitions this year.  CIS randomly selects 65,000 petitions from those received within a designated period of time for adjudication and summarily rejects the rest.  With that many petitions, there are sure to be a lot of disappointed people after the lottery results are announced.

What should someone do if their petition is not selected in the lottery?  Do they have to return to their native country, even though many of them may consider the U.S. to be their home?  Do they have to abandon their dreams of lawfully living and working in the U.S., thereby potentially making them feel as if their education and/or work experience was wasted?  These concerns and feelings are valid, but they must be set aside.  A viable solution that will allow the non-citizen to lawfully remain in the United States can be found.
There are many potential ways of obtaining lawful status in the U.S., either permanently or temporarily.  One possibility is an ‘L’ visa.  The ‘L’ visa is a temporary visa available to foreign-born citizens who have been working for a U.S. corporation’s parent or subsidiary company for at least one year out of the last three years.  It is available to employees working as an executive or manager, or to employees with specialized knowledge.  This obviously requires experience within a certain company and a particular background, but if these requirements are met, it is certainly possible to obtain a visa allowing a person to work in the U.S. for three years.  This permission to live and work in the U.S. may also be extended at the end of that three-year period. During that period of time, it is also possible to apply for a green card based on the employment with the international company. So, what starts out as a temporary work visa can become a permanent residence visa (green card).

There is also an ‘E’ visa.  The ‘E’ visa is available to traders and investors who come to the U.S. pursuant to a treaty of commerce and navigation between the U.S. and a foreign country, including the Philippines.  On a basic level, the applicant must carry on substantial trade between the U.S. and the foreign country, or direct the operations of a company in which they have invested a substantial amount of money.

Employment-based permanent residence is often accomplished through the labor certification process. The purpose of the labor certification is to determine that there are no able, willing and qualified U.S. workers for the job and that the job meets the requirements for the U.S. labor market.  The employer must conduct a test of the labor market through a recruitment process set out by U.S. Department of Labor (DOL).  Upon its completion, the application for labor certification is submitted.  When it is approved, an “Immigrant Petition for Alien Worker” is filed with USCIS.  At that point, the immigrant is eligible to apply for permanent resident status.  The DOL has pre-determined that there is a shortage of U.S. workers in certain categories and those jobs (such as nurses) don’t need to go through the labor certification process.

The length of time it takes to get through the process varies depending on your country of birth, education, employment background, etc.  However, the labor certification process can be accomplished while one is working on an H or an L or an E visa.

It is clearly disappointing to not be selected in the H-1B lottery.  But that does not mean that lawfully working and residing in the U.S. is impossible.  It is important to explore your options to find out if there is alternative way of reaching your goal.  Consulting an experienced and knowledgeable attorney who is dedicated solely to the practice of immigration law is a good way to provide you with a practical solution.