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Alternative Strategies for Rejected FY19 H-1B’s

traveler in airport watching plane take offU.S. Citizenship and Immigration Services (“USCIS”) has started returning H-1B petitions to employers whose cases were not selected in the recent H-1B lottery selection process. The USCIS reported that a total of 195,000 H-1B petitions were received during this year’s qualifying filing period, which began on April 2, 2018 and ended on April 6, 2018. Employers whose H-1B petition was not selected for allocation under the 2019 Fiscal Year H-1B quota will receive their paperwork back from the agency, including the uncashed filing fee checks, by regular mail. The quota (or “cap”) applies to individuals who have never held H-1B status before or who previously worked only for an H-1B exempt employer.

Employers should be considering legal strategies that may allow the individual to continue their employment even after receiving notice of the rejected H-1B petition. Some of these alternative visa options for affected employees include, but are not limited to, the following:

    • Canadian and Mexican professionals: TN visa available under the North American Free Trade Agreement in qualifying occupations

    • Nationals of Australia: E-3 visa

    • Nationals of Chile or Singapore: H-1B1 visa

    • Intracompany transferees: L-1 visa. An organization with foreign operations can transfer employees to its U.S.-affiliated company in a similar position under certain circumstances.

    • Individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify: 17-month optional practical training (OPT) extension

    • Individuals who qualify under the extraordinary ability or outstanding researcher criteria: O-1 visa.

    • Essential employees if the company and foreign national share the same nationality of a qualifying treaty country: E-1 (Trader) or E-2 visa (Investor)

    • Individuals in F-1 student status: Continue with F-1 studies and look at internship opportunities under curricular practical training (CPT)

    • Individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent I-140/485 green card process and work authorization issuance

    • For individuals whose employers have offices outside the United States, placing the employee on the foreign payroll and work abroad until next year’s H-1B filing period or until another type of work visa becomes available

    • Individuals entering a structured training program: H-3 visa

    • Individuals who can be categorized as an Exchange Visitor: J-1 visa

Every situation is unique and a knowledgeable legal professional should be consulted to identify all available options should the H-1B petition filed on behalf of a foreign national employee be rejected.

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Foster Garvey’s International practice group comprises a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. A number of attorneys have been actively practicing in the international arena since the early 1970s.
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