H1B Visa Lottery 2024 – What to do if I wasn’t selected – with Jacob Sapochnick

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In this video, attorney Jacob Sapochnick discusses the end of the selection process for the H-1B Visa Lottery for fiscal year 2024. If you were not selected in the lottery but would like to know more about your immigration options, then this is the right video for you.

Did you Know? The H-1B visa program allows American companies and/or organizations to employ foreign workers who possess both a theoretical or practical application of a body of highly specialized knowledge and a bachelor’s degree or its equivalent, for a temporary period of time. A congressionally mandated cap limits the number of new H-1B visas that can be issued to 65,000 per year, and 20,000 for those who have earned a U.S. master’s degree or higher.

Overview

On March 27, 2023, the U.S. Citizenship, and Immigration Services (USCIS) announced it received enough electronic registrations to reach the congressionally mandated cap for fiscal year 2024. After the registration period closed on March 17th, USCIS completed a randomized lottery from among registrations submitted, to select qualifying petitions for the 65,000/20,000 H-1B regular visa cap and advanced degree exemption.

Registrants who were selected were notified via email or text message stating that an action was taken on their myUSCIS online account. Account holders could then log in to see the full notice and determine whether they were selected to file paper applications with USCIS.

The period for filing a paper H-1B cap-subject petition with USCIS will be at least 90 days. USCIS began accepting H-1B submissions from selected registrants (Form I-129 with supporting documentation) beginning April 1, 2023.

USCIS has not yet disclosed whether they will conduct additional randomized lotteries to fill the H-1B visa cap. In previous years, additional lotteries have sometimes taken place, where USCIS has determined that it has not received sufficient mail-in applications to fill the H-1B visa cap by June 30, 2023. Historically, second randomized lotteries (if any) have occurred during the month of July, with accountholders being notified in the month of August.

The H-1B Visa Alternatives

Every spring, nearly half a million petitioners submit electronic registrations for a chance at being selected, making the H-1B visa extremely competitive. This leaves open the question, what happens to those who were not selected in the H-1B visa lottery? Are there any H-1B visa alternatives that such applicants can pursue to live and work in the United States?

Once the petitioner or authorized representative has logged into their myUSCIS online account and determined that they were not selected in the FY 2024 H-1B visa lottery, then the petitioner and foreign worker may consider alternatives to the H-1B visa.

While it is one of the most popular, the H-1B visa is certainly not the only work visa option available to professionals seeking to work in the United States.

Some of the most common alternatives to the H-1B visa include the TN Visa (for Canadian and Mexican nationals), E-3 visa (for Australian Nationals), O-1 visa for aliens of extraordinary ability, E-2 Treaty Investor visa for entrepreneurs and essential employees (must be from a country with a treaty relationship with the U.S.), the H-2B for Non-Agricultural Workers, and the L-1 visa for Temporary Intracompany Transferees.

F-1 International Students on OPT

If you are an F-1 international student with Optional Practical Training (OPT) that was not selected in this year’s H-1B visa lottery, in many cases it is advisable for you to return to school and maintain your status while you explore future visa options. This may be especially important if you do not have sufficient work experience or other skills that would qualify you for additional work visa options.

The TN Visa for Canadian and Mexican Nationals

Under the North American Free Trade Agreement (NAFTA), Canadian and Mexican nationals may apply for a TN visa to live and work in the United States. To be eligible for the TN visa, applicants must work in a profession approved under the NAFTA program for a U.S. employer. Most of the professions authorized by the TN visa program, require a bachelor’s degree, which makes this visa much like the H-1B visa in some respects. Furthermore, dependent spouses and unmarried children under the age of 21 can live in the United States under a derivative TD visa.

Additionally, the TN visa has no numerical cap and can be applied for at any time of the year.

The E-3 Visa for Australian Nationals

The E-3 visa is a visa specifically reserved for Australian nationals with eligibility requirements that are very similar to the H-1B visa. For example, Australian nationals must have a bachelor’s degree or its equivalent and must seek employment in a specialty occupation. The E-3 visa is issued for an initial period of no more than 3 years, with extensions granted in 2-year increments.

Dependent spouses and unmarried children under the age of 21 can live in the US under the same E-3 classification as the principal applicant. Spouses of E-3 visa holders may also apply for employment authorization.

 The O-1 “Extraordinary Ability” Visa

If you are an alien with extraordinary ability in the sciences, education, business, athletics, motion picture, television, or arts industries, and you have received a job offer from a U.S. employer in your area of extraordinary ability and national and/or international acclaim in your field, you may consider the O-1 extraordinary ability visa. An alien on an O-1 visa may live and work in the United States for a period of up to three years.

In order to be eligible for this visa type, you must demonstrate that you are an alien of extraordinary ability in your field. Applicants should hold an advanced degree to demonstrate a high level of expertise in their field and have received international or national acclaim in their fields as evidenced by awards and other international or national recognitions received.

Individuals who are leading experts in their fields, and have written extensively in their fields, receiving notoriety for their publications are also great candidates for the O-1 visa. Membership in prestigious professional associations, which require outstanding achievements from members are extremely helpful when applying for the O-1 visa, as well as evidence of scientific, scholarly, or business-related contributions that are considered of major significance in the field.

The E-2 Treaty Investor Visa

Another useful option for business owners, entrepreneurs, or essential workers, is the E-2 nonimmigrant visa. Foreign nationals from a country with a qualifying “treaty” relationship with the United States may apply for an E-2 visa to start their own business in the United States or invest in an existing business in the United States.

Applicants may either change their status while inside the United States (for instance from F-1 to E-2), and/or apply for the E-2 visa at the designated U.S. Consulate or Embassy in their home country.

For E-2 entrepreneurs, the amount of money invested in the business must be proportional to the total investment, usually more than half of the total value of the enterprise or for new businesses, an amount normally considered necessary to establish the business. The investment must provide job opportunities or make a significant economic impact in the United States. To be eligible for this visa, investors must commit funds necessary to start business operations (lease the space for the business, purchase equipment for the business, set up the business). The funds required for investment purposes will depend on the type of business, but in general the foreign national should commit at least $100,000.

Additionally, essential employees with certain specialized skills may enter the U.S. on an E-2 visa, such as company executives and managers.

Qualified treaty investors and employees are allowed a maximum initial stay of two years. Requests for extension of stay in, or changes of status to, E-2 classification can be granted in increments of up to two years each. One of the major benefits of the E-2 visa is that there is no limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.

Additionally, spouses of principal E-2 visa holders may apply as dependents and are eligible to work in the United States.

The H-2B Visa for Temporary Nonagricultural Workers

Another common short-term visa is the H-2B visa for temporary nonagricultural workers. This visa type allows U.S. employers to temporarily hire nonimmigrants for the purpose of nonagricultural labor or services in the United States

The most common industries that utilize this visa are the construction, hospitality, resort industry, and sometimes even technology companies.

To qualify, the employment must be temporary such as a one-time occurrence, seasonal need, peakload need or intermittent need (each is defined in further detail down below). The most common type of need is a “seasonal” need. Once one of these conditions has been proven the employer must file a labor certification with the Department of Labor.

The requirements of the H-2B visa are different from those of the H-1B visa, therefore it is important to discuss this visa with an experienced immigration attorney to determine if it is a good option for you.

The L Visa for Intracompany Transferees

Another option is the L visa type. This visa allows a U.S. employer to transfer qualifying managers, executives, and employees with specialized knowledge from an affiliated foreign business entity to a U.S. office. The L visa requires a qualifying relationship between the U.S. and foreign entities, the foreign worker must have worked for the foreign entity for at least one (1) year in the last three (3) years, and the employee must be in a qualifying executive or managerial position or possess specialized knowledge about the organization.

This is a great visa option for managers, executives, or essential employees who are working for a U.S. company abroad, and seeking to transfer to the U.S. branch.

The Takeaway

These are just a few of the many temporary work visa options that may be available to you. Many of these categories will require the support of a U.S. employer, who must file a petition on the foreign national’s behalf. While others, such as the E-2 visa for treaty investors/entrepreneurs requires the foreign national to start his or her own company in the United States, or takeover an existing business enterprise.

To learn more about these and other visa types, please visit our website.

Contact us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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