Season 1, Episode 3: The Results Are In For The H-1B Cap Lottery...What If I Lost?

Gabe Jiran: Welcome to today's episode of From Lawyer to Employer: A Shipman Podcast. I'm your host, Gabe Jiran, and today I'm pleased to welcome back immigration lawyer, Bradley Harper for a second episode on the H-1B cap lottery. Bradley, thanks for joining me again.

Bradley Harper: Sure, good morning.

Gabe Jiran: For our listeners, Bradley was the very first guest on the podcast and he was talking about the H-1B cap lottery. We're bringing him back because the deadline has come for both filing and also the selection process has occurred. So tell us where we're at in the process right now.

Bradley Harper: Sure, so certainly the window has closed to buy your lottery ticket. And as a lot of our listeners may know, the USCIS lottery has been run, so people that have won are really tickled right now-

Gabe Jiran: Hm.

Bradley Harper: ... and their employers are probably in the midst of preparing and filing an H-1B petition on their behalf. But, unfortunately with any lottery some folks are losers and they were not selected, so they're probably pretty anxious about what are they gonna do next.

Gabe Jiran: So we talked last time that in the past there have been times where the lottery was reopened, so to speak, and I think, if I recall correctly, you said that, "It's not really a new lottery, it's just going back to the people that already submitted." So, we don't have any prediction as to whether that's gonna occur, right?

Bradley Harper: Impossible to know and, in fact, that only happened twice in history. They did it last year and the year before. I don't know if that's a creature of the pandemic or a trend that will continue, but there's absolutely no way of knowing if they're gonna have a second lottery this year.

Gabe Jiran: Okay, so people that missed out can't rely on that necessarily as an option to be, you know, a great surprise if it occurred again I suppose. So, let's talk about what employers can do if they didn't get selected in the lottery. Are there other options for employees?

Bradley Harper: There are. Now, of course, there's a reason that the H-1B is the most coveted visa, it's straightforward, it works well, and what's great about it is that it has dual intent for both temporary employment and allows employees to get on that train for a green card, right? So a lot of the alternatives that I'm gonna talk about, while they may work, a lot of them do not have that dual intent that we talked about that will allow an employee to simultaneously pursue a green card while temporarily working for a U.S. employer.

But there are other options. So, the first one is a lot of employees are coming straight out of school, so they're foreign national students that are here on an F1 visa. So a student that's here on an F1 visa actually has two training options that'll allow them to work for a U.S. employer. If they're still in school they can pursue something called curricular practical training, or CPT, and if they're at a certain point in their degree or finishing school they can pursue something called optional practical training, OPT.

So students that are in school may qualify for CPT work. In order to do that, they need a job opportunity from a U.S. employer, and the job should be directly related to their field of study, and it must be an integral part of the school's established curriculum. The reason for this is because when a student's on CPT, they're generally also getting credit from their university.

So some employers may already be partnered with local universities, in which case they may want to look out and see, can this foreign student work with the school in order to get CPT? For some U.S. employers that may not be an option, but all students that are here on an F1 visa are eligible for up to 12 months of regular OPT.

So with regular OPT, again, the student needs to find a job in a field that's related to their degree and the student can work for up to 12 months for that employer. Typically this done after you've finished school, you've earned your degree, but in certain cases this can be granted while the student's still in school.

And then if the student is here on an F1 and they're in a STEM degree program, and STEM, of course, stands for Science, Technology, Engineering, and Math, then they can get an extra 24 months of two years on top of the regular OPT. So they can get 24 months of STEM OPT to continue working for that U.S. employer in a STEM job related to their field of study.

Gabe Jiran: Let me, uh, unpack that a little bit, so, because I'm not sure I followed [laughs] all of that. The F1 visa, that applies to a student, so it's a student visa?

Bradley Harper: Correct-

Gabe Jiran: [crosstalk 00:04:55]

Bradley Harper: ... the student's probably on this visa already if they've applied for-

Gabe Jiran: I see.

Bradley Harper: ... a job with you.

Gabe Jiran: So what you're talking about though is ... So they already have that F1 visa, now they would be leaving school and actually working for an employer, they would have these options?

Bradley Harper: Correct. This is a benefit that comes out of the F1 visa. So they want to be getting a new visa, they're just, sort of, unlocking a benefit that is tied to their F1 visa.

Gabe Jiran: Oh I see. So could they still be in school, and working at the same time, and still be under the F1?

Bradley Harper: In certain situations, the ... So that would be something that would fall under the CPT, the curricular practical training.

Gabe Jiran: Okay.

Bradley Harper: And in certain cases, perhaps the OPT, they'd need to be far enough along in their degree to be eligible for this in-school employment.

Gabe Jiran: I see. So if I'm an employer out there and I'm lookin' to hire somebody that's still in school, they're on their F1 visa right now, I mean, what kind of things, uh- uh, would I be looking for or asking of the student, or the university for example, as to whether this is a good path.

Bradley Harper: Sure, so a lot of this is gonna be administered by the student's school. So at all schools that host foreign national students, they have somethin' called a DSO, or a designated school official, that runs their student visa program. So the DSO will, kind of, be the gatekeeper to this CPT and OPT employment.

While a U.S. employer may not be able to directly work with the DSO due to privacy concerns, they should certainly be talking to any potential new employees who are foreign national students and encouraging them to work with their DSO to see, uh, is it possible to get OPT or CPT to work for them.

Gabe Jiran: I see, yeah. You ... I'm just thinking of the employers out there that are really interested in a candidate who's in school, but then, you know, they- they come across this immigration issue and say, "Oh, gosh, I don't even know how to navigate this thing." So there are, there's help out there.

Bradley Harper: There's help out there. And if an employer, a U.S. employer is not enrolled in E-Verify, and the thing that they're going to be employing foreign national students, particularly those that are in the STEM field and may get that 24 month of STEM OPT, they should consider enrolling in E-Verify. You can't employ someone on STEM OPT unless you're enrolled in E-Verify. And quite frankly, even if you never employ a foreign national student, it's good practice to be on E-Verify.

Gabe Jiran: Okay. So that, that's one path par-, uh, potentially with students. Now, it's my understanding and my rudimentary knowledge of immigration matters, that there are certain visas that may apply for specific countries, is that right?

Bradley Harper: Correct. There are actually three separate visas that are virtually identical to the H-1B visa, but they're only available to nationals of certain countries. So, the first one we'll talk about is the H-1B1, sounds really similar to the H-1B, right? So that's only open for Chilean nationals and Singaporean nationals.

The requirements to qualify for that H-1B, other than needing to be from either Chile or from Singapore, are basically the same. You need a professional job that requires at least the equivalent of a U.S. bachelor's degree in a certain field. But the other key difference with this type of visa is that, again, at the beginning we talked about there's, you know, the dual intent to an H-1B visa where an employee can simultaneously be pursuing a green card while temporarily working for a U.S. employee.

Unfortunately, with the H1B1, an employee can't simultaneously pursue the green card. There's a limit to how far they can go. But, again, this is a useful visa because while it does have a numerical limit, like the regular H-1B, the numerical limits never have been met for the H-1B1, so there's no lottery. If you qualify, you can pretty much get one at any time.

Gabe Jiran: Uh, interesting. So, using [laughs] the lottery that's just past, you didn't get selected, then someone that's from Chile or Singapore, you could file at any time for that?

Bradley Harper: Correct, you can file at any time. You don't have to play this game of registering between March 1st and March 18th and waiting to start working for a U.S. employer on October 1.

Gabe Jiran: Well it's a nice option, well for those two countries anyway, because from a hiring perspective you don't have to worry about, you know, the- the timelines. You can be doing the hiring process, submitting the paperwork anytime during the year, right?

Bradley Harper: Correct- correct.

Gabe Jiran: Are there any other countries that have similar type of provisions?

Bradley Harper: There are. So for our buddies down in Australia, there's the E-3 visa, which again is virtually the same requirements as the H-1B. It also has a numerical limit, but again we've never met that numerical limit. There's no lottery you have to play. And, again, it's on a rolling basis that you can apply for the E-3 visa, so similar to that H-1B1 for Chileans and Singaporeans.

Gabe Jiran: Okay. Any other countries?

Bradley Harper: Sure. So nationals of Canada and nationals of Mexico could apply for a TN visa. The TN visa is not exactly as similar to the H-1B as the E-3 and the H-1B1. While it does require, you know, a specialty occupation, uh, that requires at least the equivalent of a U.S. bachelor's degree to perform the job, there's a more narrow list of professions that are acceptable for a TN visa.

So the TN visa is a creature of NAFTA, the North American Free Trade Agreement, and as part of that treaty, there's a list of roughly 60 professions. If your profession's on there, then you've cleared the first hurdle for the TN visa. However, not only does the profession have to be on there, certain professions are particularly narrow in terms of what you can come to the U.S. and do.

For example, one of the biggest, you know, narrowings of the profession that comes up and makes this visa difficult for some of our clients is that doctors are a profession on the list for a TN visa, but you cannot be coming to the U.S. to provide direct patient or clinical care. You have to be a doctor that's either coming to do research or to teach, so like an academic doctor.

But for a lot of professions on the list, this narrowing doesn't exist. A chemist can come and be the same type of chemist on a H-1B as they could be on a TN visa. Again, the hitch would be that you need to be a national of Mexico or a national of Canada.

Gabe Jiran: I would think that this would be a really popular path. I mean, in the U.S., it's just geographic proximity with Mexico and Canada being on our borders and I would assume we see a lot of activity in the TN visas?

Bradley Harper: Definitely. And for Canadian nationals, they can actually apply for their TN visa right there at the border crossing.

Gabe Jiran: Oh really? Does it get granted right there on the spot?

Bradley Harper: It can get granted and it can get denied right on the spot. So it works out well if it's slam dunk. Just drive to the border and process your paperwork there.

For Mexican nationals, unfortunately, they're not able to this at the border, but they can travel to a U.S. consulate or embassy in Mexico to apply for their TN visa.

Gabe Jiran: Interesting. So, let's just say I'm a Brazilian national, but I've been livin' in Canada for however many years, and now I want to come to the U.S. Could I use the TN visa for example?

Bradley Harper: So that's an interesting question and a common misconception. While that Brazilian national may be currently located in a qualifying country, what we're looking at here is your nationality. If the Brazilian in this scenario has since become a national of either Mexico or Canada they could apply, but the mere fact that they're physically located in either Mexico or Canada would not be enough to qualify for the TN visa.

Gabe Jiran: [crosstalk 00:12:43]

Bradley Harper: It's your country of nationality.

Gabe Jiran: And I'm assuming the same is true for the other ones we talked about?

Bradley Harper: Correct. For the E-3 visa it wouldn't be enough to be physically located in Australia, you'd need to be an Australian national and for the H-1B1 you'd need to be either a Chilean national or a Singaporean national.

Gabe Jiran: Okay. All right, so those are the country-specific examples. Now, uh, it's my understanding there's a few other options that may be out there. For example, based on the type of employee you are or the type of skills or experience you have?

Bradley Harper: Correct. So as we get further afield with these alternatives, some of them do become a little less difficult or not as suited for entry-level workers. One type of visa that folks may have heard of is the O-1 visa. This visa is for individuals, uh, with extraordinary ability or extraordinary achievement.

So it's broken down into two separate sub-categories. The O-1A visa is for individuals with extraordinary ability in science, business, education, or athletics and then the O-1B visa is for individuals with extraordinary ability in the arts or achievement in motion picture or TV, so the movie stars out there.

For the O-1A visa, in order to obtain this visa, the individual needs to demonstrate that they've had sustained national or international acclaim and the U.S. employer needs to be offering them a job that requires someone with that type of extraordinary ability. So that's where this one gets tougher. If you're coming straight out of school, it may be particularly difficult to have r-, you know, risen to that top percentage of your field.

The other thing is, as I mentioned here, the job offer itself needs to require someone with extraordinary ability. So, certain jobs just don't lend themselves to extraordinary ability. However, some of them do. For example, our folks in the biotech industry, they're putting together research to come out with cutting-edge drugs for Alzheimer's, cancer, various ailments. Probably a lot of those jobs do require someone with extraordinary ability and in those cases that sector may be well suited for pursuing this type of visa.

Gabe Jiran: Right, and the biotech field I would think this would be a big one. Are there other types of professional fields out there that- that this, uh, particular visa would lend itself to?

Bradley Harper: Well, also, in business it can work out well. If you're a company who's really trying to break into a new sector of the market, and you've got a foreign national who's already broken into that market elsewhere, then that's an extraordinary ability that may be useful for you to add to your team. And since you've never broken into that market, you probably have a job that requires someone with extraordinary ability.

Gabe Jiran: So it ... I guess the question is, how do you determine extraordinary ability? I'm sure [laughs] if you ask any of these individuals they'd say, "I'm extraordinary." But, uh, I'm assuming the government has something to say about that?

Bradley Harper: The government has some criteria and that's what makes this a particularly difficult visa type. If you've received a Nobel prize then it's slam dunk, we're done. That's that-

Gabe Jiran: Oh it's that easy.

Bradley Harper: If that's ... Well-

Gabe Jiran: [laughs]

Bradley Harper: ... uh, getting the Nobel Prize is probably the difficult part. But if you've got a Nobel Prize, then that in and of itself is criteria that will satisfy the extraordinary ability requirement. But most people don't have Nobel laureate odds. So, instead, the government has eight criteria, eight separate subsets of criteria that go towards demonstrating extraordinary ability. If you can meet at least three out of the eight criteria, then you may be able to establish extraordinary ability. Certainly if you can knock off more than three, you're closer to being classified as having extraordinary ability.

And without going through all of the criteria, that includes things such as receipt of major national or internationally recognized prizes in the field, peer review publications, having national or international media feature your work or write about your work, those types of things that demonstrate this person really is at the top of their field.

Gabe Jiran: Yeah, so I'm seeing, as we go through these, more and more narrowing of the criteria. Yeah, I guess that's the name of the game, right, is if you can't get picked in the lottery, you may have options but, you know, there's gonna be pretty specific criteria involved.

What- what about if I'm a company and I've, you know, have got subsidiaries or affiliated companies around the world, is there any ability, uh, I don't want to say get around the requirements, but, you know, through transfers between entities or things like that might be an option?

Bradley Harper: There are, that's a great option. So, there's a category of visa called the L-1 intracompany transferee visa. If you're a U.S. employer, and as you said you've either got foreign offices, so branch offices in another country, or if your company is a subsidiary or an affiliate of a foreign company, then this might be a category you want to explore.

Essentially what the L-1 visa allows you to do is to take certain types of employees from one of your foreign offices, or from one of your foreign affiliates or subsidiaries, and transfer them to work for the U.S. company.

Again, this visa, like the O-1 visa, is broken into two subtypes. There's the L-1A visa and the L-1B. The L-1A visa is for executives and managers. The L-1B is for employees who have specialized knowledge relating to the company's interests. In both cases there's a couple criteria here.

The employee in question needs to have worked for the foreign office of your U.S. company or one of your foreign subsidiaries or affiliates for one full and continuous year within the last three years before they apply for the visa and that employment needs to be in a qualifying capacity. So for the L-1A visa, they need to have been employed as a manager or an executive abroad for one full continuous year. Or if it's for the L-1B visa, they need to have been in a position that required them to have specialized knowledge of the company's interests.

Gabe Jiran: Envisioning I need a flowchart to follow all this stuff, it seems very complicated.

Bradley Harper: It does get more complex, and again that's why the H-1B visa is so coveted, it's so straight forward. However, the nice thing about the L-1 visa is that this one does have dual intent. So like the H-1B, you can transfer this foreign national employee to a U.S. company and simultaneously pursue the green card process for them.

Gabe Jiran: I see. Well, I guess for our listeners, if you weren't chosen in the lottery, this is why you need to reach out to an immigration lawyer, right? Sit down and say, "Okay, well, we didn't get the H-1B, however, what else can we do?" And we could go through all these criteria and say well, who's the, the employee at issue, where do they come from, what- what type of work do they do, and- and see if any of these options would fit. But, uh, is there even an option just to forego these temporary visas and go straight for the green card?

Bradley Harper: Yes. In this competitive labor market, employers may be more willing to take chances that they weren't willing to take before. While there is often a need to have some sort of temporary visa to allow an employee to stay in the U.S. and keep working while pursuing the green card process, in some cases an employee may still have an ability to at least remain in the U.S. even if they can't work for you.

There's nothing that prohibits an employer from sponsoring a new candidate or an employee for a green card straight out of the gate. The problem is a lot of employers don't want to take that type of chance on an employee that they haven't yet gotten to know. But for a position that's been perpetually difficult to fill, it may make sense to go ahead and start sponsoring that employee for the green card.

Now in some cases if that employee doesn't have a visa that would allow them to remain in the U.S. while the green card process is rolling, employers may need to prepare themselves for a period where the employee must go back to their home country and wait out the rest of the process. But with remote work it may be possible to work out an arrangement for that employee to continue being productive for the company while they're waiting.

Gabe Jiran: Yeah, that's an interesting point. And- and for those of you who are not familiar, the green card is more of a permanent status than these temporary visas we've been talking about. So, you're right, with remote work there very well may be an option that employers are thinking about that they wouldn't have considered before, because previously they couldn't get productive work out of the employee. Now, literally, you can be anywhere in the world and- and working remotely and- and- and still getting the benefit of that while you're tryin' to get the green card process done. That's a whole nother topic.

Bradley Harper: And you would certainly want to speak with not only an immigration attorney, but perhaps a tax attorney, because employing a foreign national remotely may incur tax consequences in that foreign country.

Gabe Jiran: I was just thinking that it's probably not that easy just [laughs] to have somebody working at a computer or wherever they may be, but, and it's probably a little far afield from our discussion today.

So, we're just, uh, are reaching the end of our time. We- we'll have Bradley back, I'm sure, perhaps talk about the green card process and or other developments in immigration, but for now we're going to conclude. And we thank you all for listening and hope you join us again soon.

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