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Options and Alternatives For Candidates Not Selected In The H-1B Lottery

By Anthony F. Siliato & Scott Malyk
Posted: 27th October 2015 09:18
The H-1B visa is, by far, the most sought-after temporary work visa in the United States for foreign national workers. It requires sponsorship by a U.S. employer and is limited to specialty occupation positions which generally require the candidates to hold at least a bachelor’s degree (or the equivalent) in a relevant discipline.
Despite its demand, the H-1B visa category is not without its drawbacks. For one, new H-1B visas are subject to an annual quota of 85,000, with 20,000 of those set aside for advanced degree graduates with a U.S. Master’s degree or higher. For fiscal year (FY) 2016, a record-breaking 233,000 H-1B cap petitions were filed with USCIS, representing a 35% increase from the prior fiscal year. Based on such an overwhelming increase in filings, H-1B candidates were faced with a one-in-three chance of a petition being selected in the H-1B lottery. In other words, approximately 2/3 of all petitions submitted were summarily rejected for lack of quota numbers.
So what is a U.S. employer to do when a foreign national is not selected in the H-1B lottery? While there are a limited number of options presented by the “alphabet soup” of temporary visa categories, there are some viable alternatives for obtaining valid work authorisation for such foreign nationals. The following list includes some of those alternatives.
  1. B-1 (in lieu of an H-1B): While the B-1 is not a traditional work visa, if applied for properly, this sub-classification is a viable alternative for multinational employers as it will allow foreign nationals to temporarily engage in professional-level employment in the U.S. for short-term periods (up to six months) provided the foreign national does not receive a salary or any other remuneration from the U.S. employer. Rather, the foreign national must be placed and remain on the payroll of a foreign entity;
  2. O-1: This visa classification is generally associated with nationally or internationally acclaimed scientists, researchers, athletes or artists; however, this category can also be utilised for business personnel who can establish they have risen to the top of their respective fields by demonstrating he/she satisfies at least three out of 10 threshold criteria provided in the regulations. See 8 C.F.R. § 214.2(o)(3)(iii);
  3. L-1: This visa classification is commonly used by multinational employers to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from abroad. It requires a common ownership and control of the sending and receiving entities by way of a parent, subsidiary, affiliate or branch relationship. In addition, qualifying candidates must have been continuously employed for at least 1 year with the foreign affiliate within the preceding three years;
  4. TN-1 (Canada) and TN-2 (Mexico):This visa classification is available only to citizens of Canada and Mexico who are coming into the U.S. to engage in professional-level activities as defined by NAFTA, which activities specifically require “at least a baccalaureate degree or appropriate alternate credentials demonstrating status as a professional.” The TN employment must fall within a NAFTA Schedule 2 profession. 8 C.F.R. § 214.6(b); 8 C.F.R. § 214.6(c);
  5. H-3: This visa classification may be utilised by a U.S. business or individual seeking to bring foreign nationals into the U.S. for the purpose of engaging them in an established training program for up to two years. The U.S. employer must demonstrate that similar training programs are not available in the foreign national’s home country. Although the training program may consist of a combination of classroom and on-the-job training, any productive employment must be “incidental” to the training program. 8 C.F.R. § 214.2(h)(7)(ii)(A);
  6. E-1: This is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of trade. Applicants must be sponsored by a U.S. employer which is owned at least 50% by national(s) of the foreign national’s treaty country.[2] The U.S. employer must demonstrate substantial trade in services or technologybetween the home country and the U.S., while the employee must be entering the U.S. to perform supervisory or executive duties or have skills which are “essential to the operation of the enterprise.”  8 C.F.R. § 214.2(e)(3);
  7. E-2 (commonly known as an Investor Visa): Like the E-1, this is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of commerce. Applicants must be entering the U.S. to develop and direct the operations of an enterprise in which the individual has substantially invested (or is in the process of investing) monies to create a business in the U.S. that is not marginal and has a reasonable growth trajectory.
As set forth above, the H-1B visa category, in its current form, is not without its issues and drawbacks. Until such time that Congress realises that the arbitrary quota on H-1B visas serves no useful purpose, U.S. employers, including in-house counsel and human resources departments, should consider more creative, perhaps less conventional alternatives, to retain and attract a more diverse, intelligent and energetic workforce.
Anthony F. Siliato heads the firm’s Immigration Law Group, and has served as the relationship partner from the inception of our relationship with Avis Budget and would continue in that capacity. A past chair of the New Jersey Chapter of the American Immigration Lawyers Association (AILA), Anthony remains an active member of AILA, serving as a mentor in employment-related immigration matters. He is a frequent speaker on employment-related immigration and has developed and performed numerous in-house training programs for clients and human resource personnel on many topics, including The Most Commonly Used Working Visa Classifications, The Road to the Green Card through PERM and I-9 Compliance. Mr. Siliato’s professional awards include being selected as a Super Lawyer (2008-2015) and in the top 100 New Jersey Lawyers (2012) by New Jersey’s Magazine, listed in the International Who’s Who of Corporate Immigration Lawyers (2015) and named 2015 Lawyer of the Year in New Jersey for Immigration Law by The Best Lawyers in America.
Scott Malyk is a partner with Meyner and Landis LLP's Immigration Law Group specialising in all aspects of corporate and business-related immigration law.  Scott represents a diverse group of domestic and multinational corporations and their employees, providing both short- and long-term guidance in connection with the hiring, transfer and retention of international personnel worldwide.  This includes counseling business clients in areas of worksite compliance, including I-9 audits and investigations, H-1B public access file compliance and electronic (E-Verify) verification requirements.
Scott has been selected for inclusion in the SuperLawyers-Rising Stars Editions for Immigration Law from 2008-2015 and was the 2012 Recipient of the Professional Achievement Award from the New Jersey State Bar Association, Young Lawyers Division.
Scott graduated from Lafayette College in 1998 and Seton Hall University School of Law in 2002. He is licensed to practice in New Jersey and New York.
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