On March 27, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that it had selected sufficient H-1B visa preregistrations to reach the congressionally mandated 65,000 regular H-1B cap (bachelor’s degree cap) and 20,000 U.S. advanced degree (master’s cap) for the 2024 fiscal year H-1B visa allocations. USCIS has sent selection and non-selection notifications to petitioners who submitted initial registrations for the Fiscal Year 2024. On April 28, 2023, USCIS announced that it had received close to 800,000 H-1B visa preregistrations, up from 483,927 that it received in 2022.
Not being selected on the H-1B Lottery is certainly disappointing. However, foreign nationals should consider the various immigration options that may be available to them, including:
- E-1/E-2: With validity periods of 2 to 5 years, depending on the treaty country- E-1 (based on the employer’s substantial trade with the U.S.) and E-2 (based on the employer’s substantial investment in the U.S.) - E visas are available to individuals from treaty countries intending to work for companies ultimately owned by nationals of the same treaty countries. E-1 and E-2 visa employers may sponsor executive, managerial, or essential skilled workers. There is no annual E-1-E-2 visa limit. In addition, E-1/E-2 visas can be renewed indefinitely, so long as the terms and conditions of employment do not change, and the U.S. employing entity remains eligible for E visa classification.
- E-3: Australians coming to the U.S. to work in specialty occupations may be sponsored for E-3 visas by U.S. employers. E-3 visas are issued for an initial period of two (2) years and can be renewed indefinitely. However, there is an annual limit of 10,500 E-3 visas. Historically, the annual E-3 annual limit has never been reached.
- F-1 Optional Practical Training and Extension: Many foreign nationals are eligible to extend their current F-1 Optional Practical Training after completing their studies in the U.S. For some foreign nationals, the best option may be to apply for a F-1 student visa and pursue a graduate degree in the U.S. After graduating from a Master’s degree program, the foreign national would be eligible to apply for Optional Practical Training (OPT), which would allow the foreign student to work at least one (1) year in the U.S. and at least two (2) additional years if they are eligible for the STEM extension. In addition, the foreign student can be sponsored for H-1B visa status while in F-1 visa status.
- H-1B Cap Exempt: Foreign nationals may pursue employment opportunities with H-1B Cap Exempt employers. H-1B Cap Exempt Petitions filed by U.S. employers not subject to the H-1B visa annual cap, including institutions of higher education or nonprofit entities with affiliation or relation to an institution of higher education, as well as by nonprofit research organizations.
- H1B1 Chile and Singapore: Pursuant to the respective trade agreements, nationals of Chile and Singapore are eligible to apply for H1-B1 visas in specialty occupations. The Chile program is limited to 1,400 visas and the Singapore program to 5,400 visas per year. Many of the applicable H-1B visa rules apply to H1B1 program. The initial period of employment is one year with one year extension increments. However, unlike H-1B visas, there is no 6-extension limit.
- L-1: Foreign nationals who have worked for U.S. employers’ affiliates or subsidiaries outside the U.S. in a managerial or specialized knowledge position for at least one continuous year within the last three years may be eligible to be sponsored by the U.S. affiliate in the U.S. for a L-1A (managerial) or L-1B (specialized knowledge) visa. L-1A visas can be issued for a maximum period of 7 years (3 initial years and renewals of 2 years) and L-1B visas can be issued for a maximum period of 5 years (3 initial years and a renewal of period of 2 years).
- O-1 Visa: Foreign nationals who can demonstrate extraordinary abilities in the fields of business, science, arts, motion picture, and certain other areas may be eligible to apply for O-1 visas through an employer or an agent. There is no annual O-1 visa limit. In addition, O-1 visas are initially issued in three year increments and can be renewed indefinitely as long as the foreign national remains an individual of extraordinary ability.
- TN Visa for Professional Workers from Canada and Mexico: Professionals from Canada and Mexico are eligible to be sponsored by U.S. employers for TN visas to work in the U.S. in certain professional categories. TN visas can be obtained at the U.S. port of entry (Canadians) or at the U.S. Consulate (Mexican nationals). There is no annual TN visa limit. TN visas are initially issued for three years. TN visas can be renewed indefinitely.
- International Entrepreneur Parole Program: Foreign nationals with a significant ownership interest (at least 10%) in a startup company (or a company created within the last 5 years) and who have an active and central role in the operations and future growth of the company may be eligible to apply for parole in order to enter and work in the U.S. The startup company must have received at least $250,000.00 in investments from established U.S. investors. Eligible foreign nationals may apply for two potential parole periods of up to 30 months each.
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