Options for Foreign Students Not Selected in the H-1B CAP Electronic Registration

Published: 05/04/2021

Source: Raminenilaw

Over the last few years, the United States Citizenship and Immigration Services (“USCIS”) has created and continued to refine the new Electronic Registration system for CAP filings. Following the closure of the registration period, if USCIS has collected a sufficient number of registrations to reach the fiscal year statutorily mandated H-1B numerical allocations, including those eligible for the advanced degree exemption, USCIS will conduct a randomized lottery and will notify those who have been selected that they may begin filing their CAP petitions beginning April 1st each year. But what about those not selected in this lottery? Thankfully, there are a few options, both with immigrant and non-immigrant intent, available to beneficiaries who are not selected.  

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  • Temporary Work Visas Available
Beneficiaries who would like to enter or remain in the U.S. temporarily have a few different options when it comes to available visas. Each option should be carefully weighed with the advice of an experienced immigration attorney, as they can be complex and require eligibility to obtain them. 
  • L-1 Visa
If the petitioner or another company has a subsidiary abroad, the beneficiary may be able to work abroad for one (1) year and then transfer to the U.S. branch of the same company. In order to do this, the beneficiary must either a) be in an executive or management role within the company or b) possess specialized knowledge of the company which they gained through their employment and is necessary to bring to the U.S. Beneficiaries should be mindful that using this visa option counts against beneficiaries allotted six (6) years of available H-1B visa time. 
  • TN Visa
If the beneficiary is a citizen of Canada or Mexico, the TN Visa option is available. Similar to the H-1B Visa Program, the TN Visa grants the owner work authorization in the U.S. for up to three (3) years. This is also extendable so long as the beneficiary continues to satisfy the requirements of the TN visa. 
  • E Visa
The E Visa is available in three (3) distinct subcategories to treaty traders and investors who wish to enter the U.S. under a treaty of commerce and navigation executed with the foreign national’s country of citizenship. This category also includes specialty occupation workers with Australian citizenship. Dependents of the E Visa beneficiary may be eligible for an EAD card while in the U.S.
  • H-1B1 Visa
Similar to the E-3 and H-1B Visas, the H-1B1 Visa is available for those foreign nationals working in a specialty occupation with citizenship from either Singapore or Chile. Each year 1,400 H-1B1 visas are available for Chileans, while 5,400 are set aside for Singaporean nationals. The H-1B1 Visa is only available in renewable twelve (12) month increments, with a new Labor Conditions Application (“LCA”) required every two (2) years. No EAD Card is available to dependents of the H-1B1 Visa beneficiary. 
  • O Visa
Beneficiaries who possess extraordinary ability and have been recognized by a qualifying national or international organization may be eligible to enter the U.S. on the O Visa for purposes of a limited engagement or itinerary. Among other requirements, the beneficiary must have an extraordinary ability in the fields of science, education, business, or athletics and must be able to obtain a written advisory opinion from a peer group, including labor organizations, or a person with expertise in the beneficiary’s area of ability. The engagement must be finite and detailed and the beneficiary will be bound by the terms in their itinerary. Work on the O Visa is limited only to those events included in the itinerary submitted with the approved petition.
  • Temporary Visas Available
  • B-1 Visa
If the beneficiary seeks to enter the U.S. for a short period of time to accomplish a particular business goal, they may seek a B-1 Visa. A B-1 Visa is a temporary visa for the purpose of consulting with clients or business associates; attending conferences, seminars, or conventions; carrying out research; or to take part in legal negotiations or proceedings. This involves showing USCIS that the reason for the stay is temporary and that  the beneficiary fully intends to return to their home country after a few months. This can include evidence that they plan to remain for a specific, short period of time and evidence of funds to cover expenses while in the U.S. No paid work is permitted while on the B-1 Visa.
  • B-2 Visa
For those beneficiaries who wish to remain in the U.S. and are willing not to work or attend school, the B-2 Visa is available for tourism purposes. B-2 Visa holders may also participate in amateur sports, musicals, or contests and attend short recreational courses of study which are not awarded credits towards a degree. The B-2 Visa is available for six (6) month periods, extendable once. 
  • H-4 Visa
If the beneficiary is married to a spouse who holds a valid H-1B Visa and the spouse is maintaining their H-1B status, then the beneficiary may qualify for an H-4 Visa. This H dependent Visa is also eligible for an EAD Card which permits broad work authorization. 
  • F-1 Visa
Beneficiaries who are eligible to remain in the U.S. on a F-1 or student visa may consider either re-applying in a new program to remain in the U.S. and continue their studies or obtaining work authorization as an integral extension to their completed studies. The F-1 Visa alone does not allow for work authorization. Permission to accept employment must be applied for and discussed with the school’s Designated School Official (“DSO”) prior to beginning work.
  • F-1 Visa Optional Practical Training (“OPT”)
Beneficiaries who are approaching the completion of or have already completed their degree and would like to continue working in a position which is related to and enhances their education, may choose to file for OPT. This visa grants the beneficiary a twelve (12) month Employment Authorization Document (“EAD”) Card to stay and work in the U.S. This option is only available if it has not already been utilized at the same degree level. Exceeding twelve (12) months of OPT at the same degree level is considered a violation of F-1 status by USCIS.
  • F-1 Visa STEM OPT
If a beneficiary has already used their allotted twelve (12) months of OPT, and that beneficiary possesses a qualifying STEM degree, they may be eligible for a twenty-four (24) month STEM extension of their OPT. This new EAD Card would allow the beneficiary to stay and work in the U.S. in a qualifying position which is related to and enhances the degree they have obtained. This extension must be applied for prior to the OPT expiring, otherwise the beneficiary may lose the option for the extension. 
  • F-1 Visa Curricular Practical Training (“CPT”)
Students who are continuing in a degree program may be eligible for work authorization that accompanies their program for a period of twelve (12) months. This must be authorized by the Designated School Official (“DSO”) in advance of obtaining employment and must be integral to the advancement of their degree progress.
  • Permanent Visas Available
Beneficiaries who would like to enter or remain in the U.S. on a more permanent basis than with the options above or who have the intent to live permanently in the U.S, have a few different options when it comes to available visas. Each option should be carefully weighed with the advice of an experienced immigration attorney, as they can be complex and require eligibility to obtain them. 
  • K-1 or K-3 Visa for Marrying a U.S. citizen
It is not uncommon for a foreign student, studying in the U.S., to begin a relationship while in school with a U.S. citizen. So long as the relationship is bona fide and legitimate, then the beneficiary may become eligible for the K-1 Visa (for fiancés) or the K-3 Visa (for spouses) of a U.S. Citizen. Both Visas require that the visa be processed from the foreign spouse’s home country and that the couple submit to a series of interviews. They will also need to prove that their relationship is real through photographs, written conversations, affidavits from family and friends, etc. Once obtained, the foreign spouse will be able to obtain a green card and will be eligible for citizenship after three (3) years.
  • Permanent Employment
Whether in the U.S. or abroad, if a beneficiary is able to obtain a future promise of employment, they may be eligible to begin the process of obtaining permanent employment in the U.S. via a green card. Beneficiaries seeking permanent employment do not need to currently be employed with the company who is petitioning for them, nor do they need to be present in the U.S while the application is pending. This process can be lengthy, ranging from eighteen (18) months to two (2) years to complete.
  • National Interest Waiver
Under the EB1 or EB2 categories for Permanent Employment, the National Interest Waiver is available to those beneficiaries who are seeking future employment to work or engage in a project that is of national importance. The project can be related to national security, health, welfare, etc. The position must be one that is well positioned to advance the cause intended by the project. 
  • E-B1A Visa
This visa category is reserved for permanent employment of a beneficiary with extraordinary ability, similar to the O Visa for nonimmigrants. No employer is necessary for this visa category; however, there are a number of other requirements which need to be met before the visa can be granted. 

The above is not a complete list of all of the available visa categories, but it includes some of the more common and popular ones for beneficiaries who are not pursuing an H-1B Visa. Beneficiaries who were not selected in the recent CAP selection process should review their current status and make all necessary arrangements for renewing their status or departing the country prior to the expiry date on their I-94 Card. Our office is available for consultations to discuss status and the options available to you. Contact our office today to arrange a phone or video consultation with one of our knowledgeable attorneys. [1]

Source: Raminenilaw

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