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

By Attorney Devin M. Connolly

2UntitledPresident Donald Trump has been highly critical of the H-1B program since taking office.  Despite these criticisms and vows the change the program though, there was no shortage of foreign-born college graduates with potential employers willing to submit petitions to the U.S. Citizenship and Immigration Service (USCIS).  These foreign-born college graduates are now experiencing another difficult part of the process – the waiting to see if their petition is selected in the H-1B lottery.

For the last several years the USCIS has conducted what is commonly referred to as the “H-1B lottery.”  This is necessary because there are far more applicants than there are available visa numbers.  The 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 has far exceeded the supply in recent years.  The USCIS announced that they received approximately 199,000 H-1B petitions this year.  With that many petitions, there are sure to be a lot of disappointed people after the lottery results are announced.

What should a person 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 working and living in the U.S., thereby potentially making them feel as if their education and/or work experience is somehow not valuable?  These concerns and feelings are valid.  However, they must be set aside before too long so that a viable solution can be found.  It is necessary to find an alternative so that you can lawfully remain in the U.S.

There are many potential ways of obtaining lawful status in the U.S., either permanently or temporarily. While permanent resident status is often preferred, it is important to remember that a temporary visa may still be valid for several years.

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 things do exist, 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.

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.

In addition, do not overlook the possibility of an employer petitioning you for a green card. The route to a green card through employment is a multi-step process and can take anywhere from 6 months to many years to complete.  The petitioner, who is the employer or prospective employer, files a labor certification request with U.S. Department of Labor (DOL), conducts necessary recruitment for the position, files an “Immigrant Petition for Alien Worker” with the USCIS, and before you know it, you are eligible to apply for permanent resident status.  Though this may sound simple and straight-forward, obtaining a green card through employment is one of the most complex areas of U.S. immigration law.

Many people are hesitant to seek permanent resident status through an employer because they believe it will take years. And it might, depending on your country of birth, education, employment background, etc. However, it might also be faster than you would expect.

It is surely disappointing to not be selected in the H-1B lottery.  Yet, lawfully working and residing in the U.S. may still be possible. Consult an experienced and knowledgeable immigration attorney to explore your options.