Another April 1st has come and gone and another H-1B visa lottery has yielded 85,000 winners and hundreds of thousands of losers. The lottery results when the number of H-1B visa applicants exceeds the statutorily mandated cap of 25,000 visas for those with master’s degrees and 65,000 visas for applicants holding a bachelor’s degree. The winners for the Fiscal Year 2019 lottery are currently being notified.
So, what options are available for an employer that has submitted one or more H-1B visa petitions that have not survived the lottery selection process and have been returned by USCIS? There are a number of other visa options including the L, P, Q, R, and TN visas. Unfortunately, odds are that those options were considered prior to moving forward with the H-1B petition in the first place.
Not all is lost. An employer should explore skipping the temporary employment visa process in its entirety and evaluating whether the candidate for employment may be eligible for permanent residency. This was the route selected by the Jewish Community Centre of York when it brought on board its new CEO, an Israeli national. Based on the resumé of its intended hire, the JCC pursued an employment based, first preference (EB-1) visa, granting the recipient legal permanent residency status. There are three general categories of the first preference visa applicable to i) individuals with extraordinary ability; ii) outstanding professors or researchers; and iii) multinational executives or managers.
The applicability of the professor/researcher and the multinational categories are, of course, limited to specific vocations or types of organizations. The extraordinary ability category, however, is open to any applicant able to demonstrate extraordinary ability in his or her field. One’s achievements must be recognized through extensive documentation. The EB-1 extraordinary ability category is sometimes referred to as the “Einstein visa” because one of the ways an applicant can qualify is to demonstrate having received a one-time achievement such as a Nobel Prize, Pulitzer, Oscar, or Olympic Medal. Failing the one-time achievement test, applicants who are determined to satisfy at least three of ten prescribed criteria will qualify. Once approved, applicants will have permanent residence status and unlimited work authorization.
As results in this year’s H-1B visa lottery are released, employers on the losing end need to examine all available alternatives. Stock and Leader is available to assist employers in evaluating applicable solutions to employment and immigration needs.