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.