By Rob P. Neale
As it does each year, the office of U.S. Citizenship and Immigration Services (USCIS) will soon hold its random lottery to select which H-1B visa petitions filed by sponsoring employers will be allowed under the annual H-1B visa quota. The agency’s rationale behind creating the “H-1B lottery” was to fairly allocate the available quota of new H-1B visas. If your business will participate in the H-1B process this year, the time to prepare is now.
Begin Planning Now
Due to changes in the H-1B lottery process starting in 2020, employers must plan more carefully than ever to ensure the highest likelihood of success to secure one of the coveted new H-1Bs. Rather than filing an H-1B petition on April 1, 2020, employers must instead submit an electronic registration request with a $10.00 fee. Electronic registrations may commence as early as March 1, 2020. If the agency notifies the employer that their registration has been selected under the H-1B lottery, the employer may only then submit their full H-1B petition along with all of the required documentation and additional government filing fees. Due to these changes it is expected that demand for new H-1Bs will be even higher than past years.
Employers should spend the next few weeks identifying those foreign workers who may need H-1B sponsorship, preparing the H-1B petitions as early as possible, and developing backup strategies should the petition not be selected.
The H-1B: A Background
The H-1B is the most popular temporary work visa option to employ professional foreign workers. To sponsor a foreign worker, a U.S. employer must first petition USCIS for approval showing that both the role and the foreign worker meet the legal requirements for sponsorship. This also includes an attestation by the employer that they will pay the foreign worker at or above the average (or prevailing) wage for other similar U.S. workers in the same geographic location.
If the sponsored worker has never previously worked in the U.S. with an H-1B visa, such as students just graduating from school, the employer's H-1B petition will be subject to the yearly H-1B quota, as discussed previously. The yearly quota limit does not apply to existing H-1B workers who are extending their current H-1B status or who are changing H-1B employers because they have previously been counted in the quota. The cap also does not apply to certain nonprofit organizations or institutions of higher education.
Alternative Options May Be Available
Due to the expected high demand, employers should be planning now for a possible non-selection of their H-1B petition. Alternative visa options for affected employees include, but are limited to, the following:
For Canadian and Mexican professionals, the TN visa available under the North American Free Trade Agreement (soon to be known as the U.S.-Mexico-Canada Agreement);
For nationals of Australia, the E-3 visa;
For nationals of Chile or Singapore, the H-1B1 visa;
For intracompany transferees, the L-1 visa (an organization with foreign operations can transfer employees to its U.S.-affiliated company in a similar position under certain circumstances);
For individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify, the 17-month optional practical training (OPT) extension;
For individuals who may qualify under the extraordinary ability criteria, the O-1 visa;
For essential employees if the company and foreign national share the same nationality, the E-2 visa;
For individuals in F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training (CPT);
For individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent I-140/485 green card process and work authorization issuance;
For individuals whose employers have offices outside the United States, the individuals can be placed on the foreign payroll and work abroad until next year's H-1B lottery or until another type of work visa becomes available;
For individuals entering a structured training program, the H-3 visa; and
For individuals who can be categorized as an Exchange Visitor, the J-1 visa.
Clark Hill is closely monitoring these new developments regarding the H-1B electronic registration program and will provide any new information as it arises. We are prepared to assist employers on the issues these new initiatives may create. Should you have any questions, please contact the Clark Hill attorney with whom you regularly work.