Alternatives to H-1B Status for F-1 OPT Employees | Quarles & Brady LLP

The H-1B lottery for fiscal year 2023 was held in March 2022. USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations, which is the projected amount needed to meet the digital allocations for the fiscal year. 2023 fiscal year. There is an annual limit of 85,000 H-1B visas per fiscal year, of which 20,000 are reserved for U.S. master’s degree holders.

In the previous two fiscal years, USCIS held one or two additional rounds of the Screening Lottery to utilize the 85,000 H-1B visa slots. If there is an additional cycle for fiscal year 2023, it will be announced later in the year. Although an additional lottery round is possible, there is no guarantee that it will occur and should not be relied upon as an option.

Employers whose employees were not selected for the 2023 fiscal year lottery may wish to consider whether there are other options for remaining employed with the company. It is best to start this analysis as soon as possible, as some options may be urgent.

The first step is to determine when the employee’s work authorization ends. OPT employees on an F-1 or student visa will have a 12-month work authorization period after graduation. Some employees may be eligible for an additional 24 months under the STEM OPT program. To be eligible, the employee must have a qualifying science, technology, engineering, or math (STEM) degree and the employer must be registered with E-Verify. In either case, there will be a clear end date to their work authorization. Both the employer and the F-1 employee must identify and know this date for planning purposes as well as ensuring immigration compliance.

If the F-1 employee is not selected in the H-1B lottery and does not have enough OPT time left for another year in the lottery, employers may consider other options for an H-1B lottery clearance. work continues. There are several other options to consider. For example, the F-1 employee may be eligible to switch to another type of visa authorized for work.

  1. O-1

The O-1 is a temporary visa status for people of extraordinary ability in the sciences, arts, education, business, or athletics. If the employee has significant and well-established achievement and progress in the field, the employee may qualify for O-1 visa status. This requires the individual to be “extraordinary” and to be at the top of their field.

  1. L-1

L-1 is a nonimmigrant status that allows employees to work for a U.S. company if they have worked for a foreign-related company. The related company must have a corporate relationship with the US company, so it is only available for companies with multinational offices. The employee will be required to work for the related overseas business for at least one year in a specialist knowledge position or in a managerial or managerial position. After this period, the employee may be eligible for an L-1 visa and could enter the United States to work for the American company.

  1. Country specific (TN/E-3/H-1B1)

Some types of temporary visas are only available to people who have citizenship of specific countries. The TN, for example, is available to citizens of Canada and Mexico. E-3 status is available to Australian citizens. H-1B1 status is available to citizens of Chile and Singapore. The employee’s citizenship may allow them to pursue one of these types of status.

In other cases, there may be other ways to retain work authorization by applying for status through a family member or returning to school.

  1. Family

If the employee has a working spouse with a nonimmigrant status that allows a dependent spouse to also receive work authorization, the employee may be able to change the status to dependent status and apply for work authorization via this dependent status. Common examples of this would be dependent statuses E-1, E-2, H-4 and L-2.

  1. Back to school

In some cases, the employee may choose to return to school to pursue higher education and may, at some point, receive an EAD as part of their new academic program. In cases where the employee is returning to school, there must be a genuine intention to pursue higher education. This should not be used to fill a regular position but rather an internship type role.

For any situation, employers should contact their immigration experts to discuss timelines and options for continuing to employ their F-1 employee.

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