H-1B Lottery – Other Options For Foreign Nationals And A Boost For E-Verify

[Editor’s Note: Today’s article is courtesy of Josie Gonzalez, Managing Partner at the law firm of Gonzalez & Harris in Pasadena, California.  Ms. Gonzalez offers employers alternatives in case their petitions weren’t selected in the H-1B lottery.]

The recent news that USCIS received over 124,000 H-1B petitions to fill its quota of 85,000 has undoubtedly sent both employers and foreign nationals in a tailspin of despair.  I’m not a mathematical whiz, but it looks like only two out of three applicants will have a chance to obtain an H-1B.  Applicants with a U.S. master’s degree will get two chances because their applications will first go into the master’s lottery, and if not chosen, will then go into the regular lottery.

Don’t despair if you have not been selected. You might get lucky with one of these options.

1.  If the company is registered for E-Verify, the database that enables employers to verify the legitimacy of work authorization and identity documents at the time of hire, those who have been granted 12 months of Optional Practical Training after graduation, are eligible for a STEM extension of an additional 17 months of work authorization.  This applies only if one has a degree in Science/Technology/Engineering and Math and will be employed in one of these fields.  For the list of academic fields of study and the list of occupations, click here.  If your employer is not registered with E-Verify, perhaps it is time to consider it — since hundreds of employers are registering every week.  Enrollment can occur expeditiously.  For information on the details of the program and how to register, click here.

2.  If you are a TN (“Trade NAFTA”) who filed an H-1B, it isn’t imperative that you switch to the H-1B category — even if you want to start the permanent residency process. Unlike the H-1B, the TN category doesn’t recognize the concept of “dual intent,” that is, the intent to work temporarily as well as the intent to get permanent residency. However, many USCIS and CBP officers have approved TN extensions and TN admissions along the Canadian border, as long as one continues to have ties to their home country and one doesn’t intend to abandon residency abroad. At a recent Immigration conference in the fall of 2012, Department of State officials working at American Consulates in Mexico expressed great leniency in granting TN visas for Mexican nationals who have permanent residency applications pending.  Further, with a TN visa or I-94 for three year duration, it might be possible to file a PERM application with Department of Labor, and for those who are not subject to the oversubscribed country quotas and are qualified for the preferred EB2 category, one might even achieve permanent residency before a TN extension is even needed.  (The Department of State Visa Bulletin is available here.)

3.  If one currently has F-1 Student Optional Practical Training and the employment authorization card (EAD) will not expire for another approximate 8 months or more, there is a “chance” that a PERM Labor Certification can be filed if you qualify for EB2 and are not subject to a country quota that is over-subscribed, as noted above, and EB2 numbers continue to be current. However, there may be a gap in employment authorization because after the PERM is approved, one still needs to file concurrently an adjustment of status (AOS) application and an I-140 and request an EAD with the AOS application. EADs get processed in 60-90 days. However, since F-1s remain in status (although not employable) for 60 days after their F-1 status or EAD status expires, one could still remain in the U.S. for those sixty days.

4.  If a foreign national is extraordinary in sciences, art, education and business,  as defined by Immigration regulations at 8 CFR §214.2(o)(3)(ii), one might qualify for O status in lieu of H-1B and get a three-year work permit.

5.  If a foreign national has “exceptional” ability and it is in the “national interest” that a PERM Labor Certification get waived, 8 USC §1153(B), one could file a concurrent I-140 and AOS application for permanent residency and get a work permit within 60 to 90 days while the application is pending.  Eligibility for the option of “concurrent” I-140 & AOS processing is only available if the foreign national is not subject to over-subscribed country quotas.

6.  If the H-1 sponsoring company has an overseas branch, parent or affiliate office, you could consider working for them for a minimum of a year and attempt to get an L-1 visa after a year of employment abroad working in an executive, managerial or specialized knowledge capacity.

7.  If you are an F-1 student and only have a bachelor’s degree, you might consider returning to school and registering in a master’s program.

8.  Lastly, you can and should advocate for Congressional relief.  A number of Congressional bills are being considered that will expand the number of employment- based permanent residency slots and increase H-1B issuance.

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Gonzalez & Harris, P.C. © Josie Gonzalez is the founder of Gonzalez & Harris, a law firm specializing in representing employers in all aspects of immigration compliance, located in Pasadena, California. She received her JD, undergraduate and master’s degrees from the University of California, Berkeley. She has represented hundreds of employers in ICE I-9 audits and in-house self audits. Josie received the American Immigration Lawyers Association (AILA) Founder’s Award for “the most substantial impact on the field of immigration law or policy.” She has published numerous articles for legal and business journals and is the editor of AILA’s leading treatise, Guide to Worksite Enforcement & Corporate Compliance.