Didn’t Win the H-1B Visa Lottery? Consider Plan B

In July 2015 Jay received the bad news: his H-1B visa petition did not win the annual H-1B lottery. His OPT was expired and his 60-day grace period was down to two weeks. After we met to discuss Plan B options, Jay enrolled in a master’s degree program that offered CPT work authorization during his first semester. His F-1 status was extended and both Jay and his employer were thrilled. Now, as Jay is set to graduate next month, he waits on edge as receipts announcing the winners of this year’s H-1B lottery arrive daily at my office, none yet with Jay’s name.

Nearly two-thirds of the 237,000 H-1B petitions filed this year with the U.S. Citizenship and Immigration Services will not win the lottery, and I receive daily phone calls from those who fear that they will not be among the winners. I offer my thoughts, which often include some “Plan B” options that many of the callers did not know about: O-1 visas for people of extraordinary ability or achievement, for which we are getting a lot of approvals; E-2 visas for treaty investors; and J-1 visas for trainees and interns.

Sometimes the best option is for a client’s spouse to receive an E-2, L-1 or J-1 visa, which allow for a spouse to work. Last year we had a client who lost the H-1B lottery and after we heard that his wife had a managerial job in Paris with a multinational company, we were able to get the wife an L-1 visa to work for the U.S. office of her company, and our client received an L-2 visa with a work authorization card. Everyone is happy.

Many clients have also had success in obtaining “cap-exempt H-1B” visas under either of two options:

If a cap-exempt organization such as a university obtains a part-time H-1B for a foreign national employee, then any U.S. employer (even a private company who is not normally cap-exempt) may piggyback on the cap-exempt H-1B and immediately file for its own full-time, cap-exempt H-1B with the employee working concurrently for both the cap-exempt organization and the private company.
Any U.S. employer, including a private company that is not normally cap-exempt, may immediately file its own cap-exempt H-1B if the private company locates the foreign national worker “at a cap-exempt organization” (such as renting a seat at a University’s Innovation Center), as long as it is true that the job duties of this employee directly and predominately further the normal, primary or essential purpose, mission, objectives or function of the cap-exempt organization.