Alternatives to the H-1B for Students Not Selected in the Lottery
U.S. Citizenship and Immigration Services (USCIS) announced that for fiscal year 2023, it received a record-breaking 483,927 H-1B registrations in March 2022. However, there are only 85,000 H-1B visa numbers available annually (65,000 for the regular cap and an additional 20,000 for U.S. advanced degree holders). Prior to graduation, many F-1 students register for the H-1B lottery but are not selected due to these challenging odds. What are the most feasible options for F-1 students not selected in the lottery? Today we will explore these alternatives.
Access a quick reference printable resource Alternatives to the H-1B for Employers and Alternatives to the H-1B for Employees here.
What are the most feasible options for F-1 students not selected in the H-1B lottery? Today we will explore these alternatives.
Option 1: Re-enroll in school and explore options for requesting Curricular Practical Training (CPT).
One option for F-1 students is to re-enroll in a new academic program. Some students choose to pursue their next level of education; for example, an individual who completed a U.S. bachelor’s degree may elect to pursue a U.S. master’s degree. In order to maintain F-1 status, students must be enrolled on a full-time basis in a qualifying academic program of study.
The first step for F-1 students is to research and contact schools of interest. After identifying their school of choice, students should ask about admission requirements, program start dates, application deadlines, tuition and related fees, and, if applicable, any necessary entrance exams. Timing is everything; if students have a critical expiration date for their current F-1 program of study, Optional Practical Training (OPT), and/or the 60-day grace period following either the program of study or OPT, they should proactively inquire with schools of interest to ensure their ability to begin the new F-1 program of study prior to the expiration date in question.
Additionally, F-1 students will need to contact the college or university’s Designated School Official (DSO). The DSO is responsible for issuing the I-20 form to the student. This form dictates the key terms and conditions for the particular program of study including the name of the student, name of university, level and type of degree program, program start date and end date, and anticipated tuition and costs for the academic school year.
Students that have completed at least one year of academic studies on F-1 status should inquire with the college or university’s DSO about their potential eligibility to apply for Curricular Practical Training (CPT). CPT is a form of employment authorization to work off campus for a U.S. employer on a full- or part-time basis. The employment may take the form of an internship, work-study, co-op, training, or other practical work experience with a specific employer. The DSO must authorize CPT with specific dates on the I-20 form. Students who possess an I-20 form containing the DSO’s CPT endorsement may begin employment with the indicated employer without having to apply for an employment authorization document (EAD) with USCIS. Since colleges and universities have CPT policies that can vary widely, it is best to inquire with the DSO early in the application process.
To qualify for CPT, the employment must be directly related to the student’s major area of study and integral to the program/curriculum. The DSO will not approve students for CPT unless both requirements are met. To make this determination, DSOs may direct F-1 students to speak with their academic advisor for the specific program of study. The DSO may also require the academic advisor to confirm in writing that the offered off-campus employment meets both requirements. Academic advisors can typically inform students whether the program in question requires an internship, work-study, co-op, or other practical experience. Additionally, the DSO can require employers to provide written details and confirmation of the offered off-campus employment to students.
Notably, F-1 students who are granted 12 months or more of full-time CPT will be unable to apply for post-completion Optional Practical Training (OPT) for that academic level. For this reason, it is imperative that F-1 students carefully monitor time spent on CPT to avoid forfeiting post-completion OPT.
Option 2: Initiate the PERM labor certification-based green card process.
PERM is the first step of the employment-based permanent residency process for most foreign students and professionals. For certain students not selected in the H-1B lottery, initiating the PERM process can be a viable option. F-1 students who qualify for a STEM OPT extension receive an additional 24 months to work for their employer (on top of the initial 12-month OPT period), which can provide sufficient time to reach a critical point in the green card process where F-1s can apply for an employment authorization document (EAD) with USCIS.
To be eligible for a STEM OPT extension, F-1 students must:
Have been granted OPT by USCIS and currently be in a valid period of post-completion OPT;
Have earned a bachelor’s degree, master’s degree, or PhD from a qualifying school that is certified by the Student and Exchange Visitor Program (SEVP) at the time they submit the STEM OPT extension application; and
Work for a qualifying E-Verify enrolled U.S. employer.
E-Verify is a free web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the completed Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).
Moving straight to PERM is unfortunately not a workable option for F-1 students born in certain countries, namely India and China. Foreign nationals born in these countries are subject to country quotas under law that severely limit the number of employment-based green cards available to them each fiscal year. Without green card availability for their country of birth, these students cannot proceed to the key final stage of the green card process known as the I-485 adjustment of status, where they can apply for an employment authorization document (EAD) with USCIS.
Option 3: Consider green card categories that are exempt from PERM.
Certain students may qualify for a PERM labor certification-exempt green card category such as EB-1-1 extraordinary ability, EB-1-2 outstanding professor or researcher, EB-2 National Interest Waiver (NIW), or EB-2 Schedule A Group I or II. Students that possess sustained national or international acclaim in their field of endeavor may qualify for the EB-1-A extraordinary ability category. Researchers and professors who have been recognized internationally as outstanding in their field, have a tenure-track or permanent job offer, and possess at least 3 years of research or teaching experience may qualify for the EB-1-B outstanding professor or research category. Students engaged in research, work, or other activity that has both substantial merit and national importance may qualify for the EB-2 National Interest Waiver (NIW) category. Physical Therapists and Registered Nurses are considered shortage occupations and may qualify for the EB-2 Schedule A Group I category. Finally, students with “exceptional ability” in the arts, sciences, and performing arts may qualify for the EB-2 Schedule A Group II category.
Moreover, if immigrant visa/green card numbers are currently available for the students’ country of birth, not only can they bypass PERM, but they can also file the I-140 immigrant petition concurrently with the I-485 adjustment of status application. As aforementioned, the filing of the I-485 allows individuals to apply for employment authorization with USCIS.
Option 4: Explore non-H-1B work visa categories.
Besides the H-1B, there are additional work visa categories for which F-1 students may qualify. These categories are often dependent on the F-1’s citizenship or nationality, while others may also require special qualifications or expertise.
Students with Mexican or Canadian citizenship may explore the TN visa under the USMCA (United States-Mexico-Canada Agreement, formerly NAFTA). Students with Chilean and Singaporean citizenship may qualify for a work visa under the H-1B1 program. Students with Australian citizenship should always explore the E-3 specialty occupation workers visa.
Other students may be good candidates for the O-1 extraordinary ability visa, which, similar to the EB-1-A green card category, is reserved for individuals with sustained national or international acclaim. Students working in religious occupations or vocations should explore the R-1 Nonimmigrant Religious Workers visa. Additionally, depending on the nationality of the student and other factors, individuals may consider the E-1 Treaty Traders and E-2 Treaty Investors visa.
L-1 visas are available to individuals who have been employed abroad continuously for at least one year by a parent, branch, affiliate, or subsidiary of a U.S. petitioning company in a managerial, executive, or specialized knowledge capacity. If individuals do not currently meet L-1 requirements and there are no other viable work visa options, attorneys can explore strategies with a multinational employer about the option of sending individuals to work for an affiliate, branch, subsidiary, or parent abroad for one year in a managerial, executive, or specialized knowledge capacity, with the goal of transferring the individual back to the U.S. on L-1 status following completion of the one-year period of employment.
The H-3 trainee visa is available to applicants who will receive training in any field other than graduate medical education or training. The H-3 training program can be a new program and does not have to be a pre-existing program. The H-3 training must not be designed primarily to provide productive employment, rather, productive employment is limited to what is necessary and incidental to the training. The J-1 trainee visa is run by the U.S. Department of State, limited to certain occupational categories, and requires a program sponsor and host organization (host organization is usually the interested U.S. employer). Other J-1 categories such as professors, scholars, research assistants, teachers, and specialists may also be an option.
Option 5: Explore H-1B Cap-Exempt Possibilities.
Students should always keep in mind that certain employers are exempt from the H-1B cap altogether, including higher education institutions (i.e., colleges and universities) as defined by the Higher Education Act of 1965, nonprofit entities affiliated with or related to higher education institutions, nonprofit research organizations primarily engaged in basic research and/or applied research, and governmental research organizations. In limited circumstances, for-profit employers can also be cap-exempt if the H-1B will physically work at the institution of higher education or affiliated or related nonprofit entity, and there is a close link between the work performed and the normal purpose of the nonprofit entity.
Under the regulations, to qualify as an affiliated or related nonprofit entity, the organization must be (1) connected or associated with an institution of higher education, through shared ownership or control by the same board or federation; (2) operated by an institution of higher education; (3) attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or (4) entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit and the institution for purposes of research or education and a fundamental activity of the nonprofit is to directly contribute to the research or education mission of the institution. In our practice, the fourth option of proving affiliation with a higher education institution is the most common cap-exempt route.
Finally, students should also be aware of the option to pursue concurrent H-1B employment with a cap-exempt employer and a cap-subject employer. Students approved for full- or part-time H-1B employment by a cap-exempt employer can have a concurrently filed H-1B petition for full- or part-time H-1B employment by an employer subject to the cap. As long as the H-1B worker continues to be employed with the cap-exempt employer even on a part-time basis (e.g., 5 hours/week), the petition filed by a normally cap-subject employer will be considered cap-exempt by USCIS.
Option 6: Look into International Entrepreneur Parole.
The International Entrepreneur Rule (IER) allows qualifying foreign entrepreneurs to be paroled into the U.S. if they can demonstrate they will provide a significant public benefit through their business venture. Entrepreneurs must have at least 10% ownership in the start-up business and play a central and active role in its operations. Entrepreneurs must also generally prove that the start-up entity received a qualified investment (currently $264,147) from a qualifying investor or a qualified grant or award of at least $105,659 from a U.S. federal, state, or local government entity.
Option 7: Consider a Temporary Assignment Abroad.
If the U.S. employer has offices abroad, F-1 students may consider requesting a temporary assignment outside the U.S., particularly if there is an opportunity to work in a managerial, executive, or specialized knowledge capacity at the foreign location. After one year of employment abroad, employers can apply for the L-1 intracompany transfer visa to bring candidates back to the U.S. in a managerial, executive, or specialized knowledge position.
To explore alternatives to the H-1B in a personalized and individual consultation, contact the ImLaw team at info@imlaw.biz.