For employers that hire foreign nationals and for foreign students living in the United States, early spring has come to be known as the “H-1B Season” where H-1B petitions are put together and sent out in a flurry to be received by USCIS during the first five business days of April. Although the demand for H-1B workers has steadily increased since the end of the recession, the number of available H-1B visas has remained artificially low. Currently, there is an annual numerical limitation of 65,000 regular H-1B visas (“regular cap”) plus an additional 20,000 reserved for foreign nationals who have earned advanced degrees (e.g. master’s degrees or above) from a U.S. university. Thus, in total there are only 85,000 available H-1B visas each U.S. fiscal year.
This year there were approximately 236,000 H-1B petitions filed with USCIS for the 85,000 available H-1B visas. This means that 151,000 H-1B petitions will be rejected leaving many U.S. employers and foreign workers looking for alternative options. Fortunately, with some additional planning and effort it may be possible to find alternative methods of employment sponsorship for foreign workers.
1. Work Authorization for Foreign National Graduates of U.S. Universities and Colleges (F-1 OPT)
Because H-1B petitions are for specialty occupations, which in most instances means that the position requires at least a bachelor’s degree, many of the foreign workers who were not selected for the H-1B lottery may be F-1 students. Typically, an F-1 foreign national who attended a U.S. college or university on F-1 status will be entitled to 12 months of work authorization following graduation using OPT (“Optional Practical Training”) work authorization. Foreign students who are interested in applying for OPT work authorization must start the process with the Designated School Official (DSO) at their respective university or college and should plan to file the necessary paperwork up to 90 days before their program end date, or no later than 60 days after the program end date.
2. F-1 OPT – STEM Extension
Additionally, F-1 foreign national graduates of U.S. universities and colleges in the fields of science, technology, engineering and mathematics (STEM Fields) are also eligible for an additional two (2) years of OPT work authorization. As such, an employer may employee a foreign national graduate of a U.S. university of college with a STEM degree for a maximum of three (3) years, if the student is eligible for the OPT STEM extension. This can be particularly beneficial as it will allow the employer to file approximately three (3) H-1B petitions to get selected in the H-1B lottery. For U.S. employers, it is very important to remember that the OPT STEM extension option is only available to foreign national students with U.S. degrees in the STEM fields working at employers that are enrolled in E-Verify. Thus, U.S. employers interested in taking advantage of this work authorization extension must first be enrolled in E-Verify. Employers should also become knowledgeable of the requirements of the STEM OPT extension at https://studyinthestates.dhs.gov/stem-opt-hub
3. O-1 Extraordinary Ability Petition
Depending on the particular background of the foreign national, it may be possible for an employer to sponsor a foreign national with an O-1 visa, instead of an H-1B. For the O-1 visa category, an employer may sponsor a foreign national employee who has extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim. Unfortunately, the O-1 visa has a much higher evidentiary threshold than the H-1B, since the foreign national must have a level of expertise indicating that the foreign national is one of the small percentage who have arisen to the very top of the field of endeavor. However, if the individual will be employed in a field related to the “arts” then the evidentiary level is not as strict and instead the foreign national needs prove that he or she has a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered. O-1 visas are not always easy to obtain, however there are no numerical limitations for the O-1 visa, and thus an employer can petition a foreign national for an O-1 visa at any time. If the employer is unable to obtain an H-1B visa then it may be worthwhile to investigate whether an O-1 visa may be appropriate for a foreign national employee whose H-1B was not selected for the lottery.
4. L-1 Intra Company Transfer Visa
If the U.S. employer is either the parent, subsidiary or an affiliate of a foreign corporation, then it may also be possible to sponsor a foreign national employee with L-1 status. It may be possible to sponsor a foreign national for an L-1 visa, if the foreign national was employed abroad continuously for one (1) year by a parent, branch, affiliate, or subsidiary of the U.S. petitioning company within the three (3) preceding years. This means that L-1 sponsorship will be limited only to employees who are currently working for the foreign company, or who worked with the foreign company within the last three (3) years prior to coming to the U.S. to work for the U.S. petitioning company. Additionally, the foreign national employee must be coming to the U.S. to work as either a manager or an executive (L-1A) or as a worker with specialized knowledge (L-1B). Specialized workers include foreign nationals who have special knowledge of the company’s product, services, research, equipment, techniques, management or other interests and its application in international markets, or has an advanced level of knowledge of processes and procedures of the company. Although this option may not be available to all U.S. employers, it is worth investigating possibly moving a foreign worker abroad to a foreign parent, subsidiary or affiliate abroad to potentially qualify for a L-1 visa, especially if the U.S. worker’s H-1B petition was not selected in the lottery.
5. Employment Based Green Card
Although a U.S. employer will typically start permanent residency (“green card”) sponsorship for a foreign worker after that worker begins working with H-1B status, it is not a prerequisite. Indeed, a U.S. employer may start the employment based green card process for a foreign worker at any time. Given the difficulties of obtaining a H-1B visa in the H-1B lottery, it may be beneficial for a U.S. employer to start the employment based green card process when the foreign worker is working with OPT, or either has or is eligible for an OPT STEM extension, especially if the foreign worker was not born in India or China. Indeed, depending on the circumstances, it could be possible to complete the process of sponsoring a foreign worker for an employment based green card within one to two years. However, given the complexities of sponsoring a foreign worker for an employment based green card it is best to begin planning for an employment based green card as early as possible.
6. National Interest Waiver
Finally, for foreign workers who were not selected for the H-1B lottery, and do not have an employer willing to continue sponsoring them for employment, it may be possible to apply for a National Interest Waiver (NIW) green card. It is important to note that in order to qualify for a NIW green card the foreign worker will need to have an advanced degree (Master’s or higher), at least a bachelor’s degree with five (5) years of post-bachelor’s work experience, or evidence proving exceptional ability.
If the foreign worker is eligible to apply for a NIW green card, the worker will not be required to have a U.S. employer sponsor. Instead, the foreign worker will need to prove that he or she (1) seeks employment in an area of substantial intrinsic merit, (2) the benefit will be national in scope and (3) the national interest would be adversely affected if a labor certification was required. Indeed, when determining whether a particular applicant is eligible for the NIW green card, it is often best to establish that the foreign worker will benefit the United States in one of the following ways:
(1) improving the U.S. economy;
(2) improving wages and working conditions for U.S. workers;
(3) improving education and programs for U.S. children and underqualified workers;
(4) improving health care;
(5) providing more affordable housing;
(6) improving the U.S. environment and making more productive use of natural resources; and
(7) interested government agency request.
The NIW green card can be very advantageous for foreign workers who qualify, and can be used for a variety of occupations, including, but not limited to, coaches, computer programmers, engineers, entrepreneurs, investment analysist, musicians, researchers, and scientists. Foreign workers who are interested in applying for a NIW green card, should discuss their options with an immigration attorney as early as possible.
George Ernst is the lead attorney for the immigration practice team at the Mitchell Williams Law Firm. Mitchell Williams Law Firm counsel and represent businesses and foreign national workers through each step of the visa, green card, or citizenship process and use our extensive immigration experience to help our clients meet their objectives.