HR Management & Compliance, Recruiting

So Your Employee Wasn’t Selected in H-1B Lottery . . . Now What?

A day after U.S. Citizenship and Immigration Services (USCIS) completed the H-1B cap-subject lottery selection process in late March, the winners were eligible to start filing. But what if your employee wasn’t selected? Fortunately, numerous other options are available so your business can continue to employ valuable foreign national workers.

h-1b lottery
AndreyPopov / iStock / Getty Images Plus

Optional Practical Training

Foreign national college students seeking to gain practical experience in their field of study have the opportunity to apply for 12 months of work authorization in the form of optional practical training (OPT) at each academic level they complete. For example, a student who completes a bachelor’s degree in finance may apply for OPT through her university and obtain work authorization to work for a local bank for 12 months after graduation.

Students participate in OPT after completing a degree, although current students also can obtain work authorization to engage in practical training through a similar program known as curricular practical training (CPT). In either instance, the appropriate college official must approve OPT/CPT, and the student must obtain an employment authorization card (EAD).

STEM OPT

University students who complete degrees in STEM (science, technology, engineering, and math) fields may apply for an additional 24-month OPT extension. For example, an individual with a master’s degree in mechanical engineering can use 12 months of her initial OPT and then apply for a STEM OPT extension, allowing for a total work authorization period of 36 months.

Employers regularly use the STEM extension as an opportunity to get several “bites” at the H-1B lottery apple, since there’s significant overlap between the STEM fields and individuals who are eligible for an H-1B visa. Provided they apply before their OPT and EAD expire, STEM OPT students can work with an expired OPT for up to 180 days while their extension request is pending. The STEM extension is a valuable strategy regularly used by U.S. employers seeking to employ foreign nationals.

TN Visas

For employers seeking to employ Canadian or Mexican nationals in many professional occupations, the TN visa is a noteworthy option. While the transition from the North American Free Trade Agreement (NAFTA) to the United States-Mexico-Canada Agreement (USMCA) resulted in many changes, the TN visa program changed very little. Positions that qualify for a TN visa include engineers, accountants, computer systems analysts, and management consultants, among others.

Similar to H-1Bs, TN applicants are generally required to have a bachelor’s degree or the equivalent in their professional field, although there are limited exceptions. Canadians are eligible to apply for TN status directly at the border crossing, while Mexican nationals are required to apply at a U.S. consulate or embassy. The status has a three-year validity period and can be renewed indefinitely.

O Visas

Another option available to a select few is the O-1 visa. To be eligible, the beneficiary must have (1) an extraordinary ability with sustained national or international acclaim or (2) a record of extraordinary achievement in the motion picture and television industry. Extraordinary ability in the fields of science, education, business, or athletics requires a level of expertise indicating the beneficiary is one of a small percentage who have arisen to the very top of their field.

O-1 status is granted for an initial period of three years. While the O-1 has a high threshold, it can be beneficial to those who qualify because it can be extended indefinitely in one-year increments.

Spousal EAD

When considering visa and work authorization options, employers shouldn’t overlook a foreign national worker’s marital status. Marriage to an individual in certain visa categories renders them eligible for an EAD.

For example, all L-2 spouses (spouses of L-1 status holders) are eligible for an EAD. Certain H-4 spouses are eligible, too. Costs associated with obtaining so-called “spousal EADs” are also typically paid by the worker, which provides an additional benefit to employers.

Bottom Line

While it may be common and highly publicized, the H-1B is only one of numerous opportunities for foreign nationals to work temporarily in the United States.

Melissa Azallion Kenny and Jonathan C. Eggert are attorneys and members of the Burr & Forman LLP immigration team in Hilton Head, South Carolina. You can reach them at makenny@burr.com or jeggert@burr.com.