So You've Lost the H-1B Lottery: Now What?

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By Laura D. Francis

March 15 — With hundreds of thousands of H-1B petitions likely to be filed for a mere 85,000 slots this year, employers need to start looking at alternative ways to keep valued foreign workers in the U.S., immigration attorneys told Bloomberg BNA.

“The last few years we've seen more and more applications submitted in relation to the H-1B cap,” Chad Blocker of Fragomen, Del Rey, Bernsen & Loewy told Bloomberg BNA March 11.

Starting in 2013, employers began submitting substantially more petitions for the temporary, specialty occupation visas than were available. That year, U.S. Citizenship and Immigration Services received 124,000 petitions . In 2014, that number went up to 172,500 and increased again in 2015 to 233,000 petitions .

In all three years, the cap was reached during the first week that employers could file for the visas.

The Immigration and Nationality Act provides for 65,000 H-1B visas each fiscal year, with an additional 20,000 reserved for foreign workers with advanced degrees from U.S. colleges and universities. Employers can petition for H-1B visas for the upcoming fiscal year—which starts Oct. 1—starting April 1 of the same calendar year.

The USCIS accepts petitions for the first five business days in April. If the agency receives more petitions than there are visas available, a computer-generated lottery picks petitions for processing, and the rest are returned along with filing fees. The lottery for the 20,000 advanced degree visas is conducted first, with those that aren't selected going into the lottery for the 65,000.

H-1B Petitions Likely to Rise Again

Blocker, who practices in Los Angeles, said it's likely the number of H-1B petitions will go up again next month. But the amount of that increase may be tempered somewhat by recent legislation doubling the additional fee required of heavy users of the H-1B program .

The $4,000 fee—which must be paid in addition to the host of other fees that are standard for H-1B petitions—is required of employers with 50 or more employees in the U.S. and with 50 percent or more employees on H-1B or L-1 intracompany transferee visas.

It was reinstated and doubled by the omnibus spending legislation funding the government through the end of FY 2016 after being allowed to lapse.

Even with the additional fee as an obstacle, H-1Bs still are in high demand, making the chances of not getting picked in the lottery increasingly likely. So what options are there for employers whose petitions aren't selected but still want to hire or retain their foreign workers?

Nationality-Based Visas

There are “different factors” that go into deciding which path to take if an H-1B petition is not accepted, Greg Siskind of Siskind Susser in Nashville, Tenn., told Bloomberg BNA March 10. Each situation is evaluated “case by case,” he said.

First, the worker's nationality might open a door to another type of visa, he said.

For example, TN visas—created via the North American Free Trade Agreement—are available to professionals from Canada and Mexico and have no cap.

But there is a “caveat,” Blocker said: The worker must be coming to the U.S. to practice a profession that is “specifically enumerated in the TN regulations.”

“It's not a catch-all for every Mexican and Canadian national,” he said.

Nationals of Chile and Singapore also have their own version of the H-1B (H-1B1), as do workers from Australia (E-3). These are a “very good option” for citizens of these countries, as the requirements for the visas are very similar to those for H-1Bs, Blocker said.

There is an annual cap for H-1B1 and E-3 visas: 1,400 H-1B1s for workers from Chile, 5,400 H-1B1s for workers from Singapore and 10,500 E-3 visas for workers from Australia. But the number of petitions filed each year doesn't even come close to hitting those caps, Blocker said.

Treaty Investor Visas

There are also E-2 treaty investor visas for nationals from countries with which the U.S. has a treaty of commerce and navigation. The visas allow investors to come to the U.S. to develop and direct the companies in which they are investing.

The E-2 is popular but carries some drawbacks, Siskind said. In particular, the visa requires that at least 50 percent of the company's ownership be held by individuals from the treaty country.

That works fine when you're talking about a startup, Siskind said. But the foreign national's visa eligibility can get derailed once that startup gets enough U.S.-based venture capital to push him or her into minority ownership.

“They get punished the more successful the company is,” Siskind told Bloomberg BNA. As a result, some startup companies “are sending their founders overseas” because there just isn't a viable way for them to remain in the country, he said.

Siskind said he's still hoping the Obama administration will soon issue regulations or guidance on use of the executive parole authority to allow immigrant entrepreneurs into the country, part of the president's November 2014 executive action on immigration. That authority allows admission of immigrants through nontraditional channels if it would be in the public interest or for humanitarian reasons.

“We don't have a great category” for immigrant entrepreneurs, Siskind said.

Some nationalities—such as workers from India—“have the door slammed on them,” Siskind added. The U.S. doesn't have any treaties or agreements with the Indian government that create special visas, and “they have a backlog in all the green card categories” because of per country caps, he said.

‘Cap-Exemption Alternatives.'

“We'll sometimes look for cap-exemption alternatives,” Siskind said. Institutions of higher education and nonprofit research organizations—and employers “affiliated” with them—aren't subject to the annual H-1B cap.

Under H-1B program rules, foreign workers can have “concurrent employment” working both for an employer that is subject to the H-1B cap and an employer that isn't, Siskind explained. As long as one employer is cap-exempt, the worker isn't counted against the cap, he said.

So, for example, a foreign physician may be working with a private medical group that has a contract with a university-affiliated hospital to provide services there. If that physician spends at least some time treating patients at the hospital, he or she isn't counted against the cap, Siskind said.

“You can get creative,” although the worker must continue to be employed by the cap-exempt entity for the duration of his or her H-1B status, he said.

Also, “anyone who's held an H-1B in the past has already been counted against the cap and is not subject to the lottery,” Blocker said. That means a new employer can hire someone on H-1B status by filing a petition to change employers, without having to get a new visa and go through the lottery process, he said.

In some circumstances an L-1 intracompany transferee visa might be an option, Blocker added. To qualify for the visa, the worker would have to spend at least a year working for a multinational employer at an overseas location before coming back to the U.S., he said.

The visa also requires that the worker be an executive or manager (L-1A) or a worker with “specialized knowledge” (L-1B), which isn't always easy to prove.

Green Card Instead?

If there's time, an employer might pursue an employment-based green card on behalf of a worker for whom it otherwise would've sought an H-1B, Siskind said.

He pointed to the Homeland Security Department's recent issuance of new regulations on a 24-month extension of optional practical training for international students with degrees from U.S. colleges and universities in science, technology, engineering and mathematics fields. Depending on the circumstances, that additional time might be enough to get through the entire three-step green card process, Siskind said.

But Blocker generally discounted the green card option for workers on OPT. The F-1 student visa isn't a dual intent visa, meaning students applying for them must indicate that they don't intend to immigrate permanently to the U.S.

“There are proposals out there to change that and to make the F-1 a dual intent visa, which would permit individuals to transition directly from an F-1 to a green card,” Blocker said. But without dual intent, F-1 students could be in hot water if the green card process isn't complete by the time their student visas expire.

“Regrettably, for most applicants, there is no visa option available” outside the H-1B, Blocker told Bloomberg BNA. The situation “underscores why immigration reform” is “definitely needed in the United States,” he said.

But “you've just got such a politically divisive issue, and therefore seeing action, especially in a presidential cycle, is very unlikely,” Blocker said. Once we know who the next president will be, “we'll have a better idea” of the likelihood of an immigration overhaul next year, he said.

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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