Another possible option could come from the fact that they are the spouse of a foreign national with a certain visa status or married to an American. For instance, for foreign nationals married to an L, J, or E visa-holder, dependent spouses on the L-2, J-2, or E-2 could be eligible for employment authorization. They’d have to apply for an Employment Authorization Document through USCIS (which, at the time of this writing, is taking six months or more) but upon the granting of that document they’d be eligible to work for any employer. Currently, USCIS allows for some H-4 spouses to also apply for this Employment Authorization Document. This is something, however, that appears likely to change with the current administration. Of course, if a foreign national’s spouse is an American citizen then sponsorship by that spouse for lawful permanent residency is an option.
First off, congratulations! It’s good news, but only the first step. Everyone selected in the H-1B lottery must keep in mind that just because the petition was selected does not mean that the petition was approved—only that the case will have the opportunity to be adjudicated. For those whose petitions were selected, there are some key points to keep in mind.
F-1 Status and OPT
Foreign nationals whose petition was selected and who are in F-1 status with Optional Practical Training (OPT) that expires between now and October 1, 2019 are able to get their OPT extended through September 30, 2019. To do so, they must take the H-1B I-797 receipt notice, demonstrating that the case filed on their behalf has been selected in the H-1B lottery, to their university’s Designated Student Officer (DSO) in order for the school to issue a new Form I-20 with an annotation that the OPT has been extended through September 30, 2019. This new I-20 with extended OPT will extend their employment authorization until September 30, 2019. Please note, however, if the H-1B is not adjudicated until after October 1st, the work authorization will not extend past September 30th. In that case, those foreign nationals will have to stop working until the H-1B is approved.
Those in the US in any other visa status must continue to maintain their current status until their H-1B petition is approved. If approved before October 1, 2019, these individuals must continue to maintain status until their H-1B is effective on October 1, 2019. If approved after October 1, the foreign national must maintain a valid status through the date of approval. If the petition was filed as a change-of-status request, traveling internationally while the petition is pending will cause that change-of-status request to be denied. The H-1B petition can still be adjudicated, but beneficiaries will have to leave the US to obtain a visa abroad and return to the US in order to obtain H-1B status on or after October 1st.
Rather than fully suspending premium processing requests, this year USCIS decided to offer it in two phases: first to FY 2020 cap-subject H-1B petitions requesting a change of status, and then secondly to all other FY 2020 cap-subject petitions. Premium processing for the first phase will commence no later than May 20, 2019. Applicants wishing to use premium processing for their H-1B petitions requesting a change of status should have concurrently filed Form I-907 with the H-1B petition on April 1. These petitions will not be processed by USCIS until after all data entry on cap cases has been completed—USCIS reported data entry was completed last week on May 17. Petitioners may also convert cases to premium processing that were filed as a change of status when premium processing begins. The rest of the FY 2020 cap-subject H-1B petitions will likely be able to upgrade to premium processing in June 2019.
Increase in RFE’s and Denials
H-1B petitioners and beneficiaries should also be aware of the increase in H-1B requests for evidence over the past years as well as a dramatic increase in denials. On April 18, 2017, President Trump issued the “Buy American and Hire American” Executive Order, instructing the Department of Homeland Security to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” After this executive order in 2017, there was a significant increase in both Requests for Evidence (RFE’s) and denials for H-1B petitions, even though there was no change in the law. Data released through the H-1B Employer Data Hub from USCIS shows that denial rates for initial H-1B petitions for FY 2019 is at thirty-two percent, three to four times higher than rates between FY 2010 and FY 2015, analysis from The National Foundation for American Policy (NFAP) shows.
Additionally, data released from USCIS shows that in the first quarter of FY 2019, the RFE rate jumped to 60 percent, compared to 45.6 percent in the first quarter of FY 2018 (up from 27.5% in first quarter of FY 2017). In our experience, in 2017, many of the RFE’s focus on a mistaken assumption that if a person holds a junior position in the company (as reflected by their salary) their duties would not be complex enough for them to be eligible for an H-1B. The Service was essentially confusing the seniority of the position with the complexity of the position. In 2018, the RFE’s simply questioned whether the job was complex enough to require a degree or whether the employer was justified in requiring a degree. It is likely that these issues or a variation of them will continue to come up again this year.
Over the next few months, USCIS will be working through all the H-1B petitions selected so everyone will hear back from them once their case has been decided. Good luck!
We’ve previously detailed a number of different visa options for those who have citizenship in certain countries that afford them alternative visa options. In particular, Australians, Canadians, Mexicans, Chileans, and Singaporeans all have options for professional visas that other countries’ nationals do not.
For those who work with O-1 visa holders, one option could be the O-2 visa. This option is for those who have become essential members of an O-1’s team so much so that they are indispensable to the O-1. If this is the case, the petitioner of the O-1 may be able to petition for the essential teammate or co-workers under an O-2.
Another longer-term option for some foreign nationals whose US petitioner has a foreign affiliate, subsidiary, or parent office abroad could be the L-1 visa. The L-1 is for those holding managerial, executive, or specialty knowledge positions for a foreign entity for at least one year and whose employer wishes to transfer them to the US branch office. If a US petitioner is willing to have the foreign national work in the office abroad in a position that fits one of the definitions above for at least a year, the L-1 could be an option in a year’s time.
With over 200,000 petitions received, the majority of people for whom an H-1B was filed unfortunately won’t be picked in the lottery and thus will have to consider other possible visa options. Every year around this time, it often feels like we are trying to fit a round peg into a square hole. It is very frustrating when the H-1B is truly the right visa status for the foreign national but due to Congress’ limit on the visa numbers we struggle to think of other options. Still, although it may be difficult, it is not impossible for many people to find other ways to come to the US to work if they do not get picked in the H-1B annual lottery. As mentioned, it is always advisable to consult with an experienced immigration attorney to discuss all possible H-1B alternatives. And if there are truly no other options, there is always the possibility to try again next year in the H-1B lottery.
For those not picked in the lottery, we know the news can feel devastating. Although there is not much consensus these days on what immigration reform should look like, we think it’s safe to say that the H-1B lottery system is something that most people agree needs reform. President Trump discussed his disdain for the system when he signed the executive order, “Buy American and Hire American:” "Right now, H-1B visas are awarded in a totally random lottery—and that's wrong." This may be the one thing we agree on. This year the administration proposed a new way of running the lottery with an electronic registration system but they couldn’t implement the system in time. Thus, that process has been postponed—possibly to be ready in time for next year’s lottery. We are hopeful that the new system will reform the process in a positive way, though it does nothing to address the limited cap numbers.
As we have discussed on the blog, there have been changes in the types of H-1B cases that are receiving harsher scrutiny that seem to stem from the current administration and this executive order. More substantive changes to the H-1B program would require legislative action or rulemaking and would take time to go through the necessary processes. Thus, foreign nationals and their potential employers must still look to the above alternatives if their H-1B petitions were not picked in this year’s cap.