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Alternatives to H-1B Status for F-1 OPT Employees

Immigration, Labor and Employment Eric Ledbetter, Erin Hogan

The H-1B lottery for Fiscal Year (FY) 2023 was conducted in March 2022. USCIS received 483,927 H-1B registrations and initially selected 127,600 registrations, which is the projected amount needed to reach the FY2023 numerical allocations. There is an annual limit of 85,000 H-1B visas per fiscal year, with 20,000 of those reserved for individuals with U.S. Master’s degrees.

In the prior two fiscal years, USCIS has conducted an additional one or two rounds of the selection lottery in order to use all 85,000 H-1B visa slots. If there is an additional round for FY2023, this will be announced later in the year. While an additional lottery round is possible, there is no guarantee that it will take place and it should not be relied upon as an option.

Employers with employees who were not selected in the lottery for FY2023 may wish to consider whether there are alternative options to remain employed with the company. It is best to start this analysis as early as possible, as some options may be time sensitive.

The first step is to determine when the employee’s work authorization ends. OPT employees on an F-1 or student visa will have a 12-month period of work authorization following graduation. Some employees may be eligible for an additional 24-months as part of the STEM OPT program. To qualify, the employee must have an eligible Science, Technology, Engineering or Math (STEM) degree and the employer must be enrolled in E-Verify. In either case, there will be a clear end date to their work authorization. The employer and F-1 employee need to identify and be aware of this date for planning purposes as well as to ensure immigration compliance.

If the F-1 employee is not selected in the H-1B lottery and does not have enough OPT time remaining for another year in the lottery, employers may consider other options for continued work authorization. There are several other options to consider. For example, the F-1 employee may be eligible to change to a different work-authorized type of visa.

  1. O-1

The O-1 is a temporary visa status for individuals of extraordinary ability in the sciences, arts, education, business, or athletics. If the employee has significant and well-established achievements and advancements in the field, the employee may qualify for an O-1 visa status. It requires that the individual be “extraordinary” and be at the very top of their field.

  1. L-1

The L-1 is a nonimmigrant status that allows employees to work for a U.S. company if they have worked for a related company abroad. The related company must have a corporate relationship with the U.S. company, so it is only available for companies with multinational offices. The employee would need to work for the related company abroad for at least one year in either a specialized knowledge, or managerial or executive position. After that period of time, the employee may qualify for an L-1 visa and would be able to enter the U.S. to work for the U.S. company.

  1. Country-specific (TN/E-3/H-1B1)

There are some temporary visa status types that are available only for people who have citizenship with specific countries. The TN, for example, is available for citizens of Canada and Mexico. E-3 status is available for citizens of Australia. H-1B1 status is available for citizens of Chile and Singapore. The employee’s citizenship may allow them to pursue one of these status types.

In other cases, there may be other avenues to maintain work authorization by seeking status through a family member or by returning to school.

  1. Family

If the employee has a spouse that is working on a nonimmigrant status that allows for a dependent spouse to also receive work authorization, the employee may be able to change status to a dependent status and file for work authorization through that dependent status. Common examples of this would be E-1, E-2, H-4, and L-2 dependent statuses.

  1. Return to school

In some cases, the employee may opt to return to school to pursue a higher degree and may, at some point, receive an EAD through their new academic program. In cases where the employee returns to school, there must be a real intention to pursue a further degree. This should not be used to fill a regular position but rather an internship type role.

For any situation, employers should contact their immigration experts to discuss timelines and possibilities to continue to employ their F-1 employee.

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