Plan B: Alternative Paths to US Employment for F-1 International Students if H-1B Cap Selection is Missed

Flavia Santos • Feb 20, 2023

International students on F-1 visas who have not been selected in the H-1B cap lottery face a challenging situation, but there are still alternative immigration options available. These options may require more effort and planning, but they can ultimately lead to the same goal of obtaining a work visa in the United States.

Assess your Remaining Time

It is imperative for individuals currently participating in the Optional Practical Training (OPT) program to assess the remaining time before its expiration. The expiration date of the OPT can significantly affect one's eligibility to continue residing in the United States, particularly if they intend to register for the H-1B visa lottery in 2024. For example, in the event of being selected in the lottery and the OPT expiring on or after April 1, 2024, the individual would be entitled to the H-1B Cap-Gap extension, thereby enabling a continuation of their OPT status until the H-1B visa becomes effective. However, if the OPT validity period expires before April 1, 2024, the individual would be required to depart the US within 60 days after the OPT expiration date. The table below illustrates this scenario.

Gear Up for Back-to-School Season

For students seeking employment opportunities in the United States, enrolling in an academic program that offers Day 1 Curricular Practical Training (CPT) is another viable option. This would enable students to start working immediately, even as they continue their studies. Furthermore, students who have already secured a job offer may be able to work on CPT while awaiting the outcome of their H-1B petition in the annual cap. To take full advantage of this extended period, it would be wise to register for the H-1B cap lottery before the expiration of the OPT period.

Consider the L-1 Visa if you Work for a Multinational Company

As a viable option for professionals seeking long-term employment in the United States, working for a multinational company abroad for a year followed by an intra-company transfer via an L-1 visa can offer numerous strategic benefits. The L-1 visa, designed specifically for such transfers, allows employees of multinational corporations to move to a U.S. subsidiary, affiliate, or parent. The L-1 visa is characterized as a dual intent visa which allows for the flexibility to pursue both temporary work and study opportunities in the country, as well as long-term residency. It also has a validity period from 5-7 years. While this path requires the individual to work abroad for a year, it can prove to be a valuable long-term solution for working in the United States.

TN Visa for Canadian and Mexican Nationals

The TN visa is a nonimmigrant visa category that allows Canadian and Mexican citizens to temporarily work in the United States in certain professional occupations, as listed under the United States-Mexico-Canada Agreement (USMCA). The requirements for a TN visa include a job offer from a U.S. employer, a pre-arranged full-time or part-time job in one of the eligible professions, a bachelor's degree or its equivalent, and proof of professional qualifications. The validity period for a TN visa varies depending on the length of the job offer, but it can be issued for up to three years and can be renewed indefinitely.

Entrepreneurs and Investors

For those who are more entrepreneurial, the E-1 and E-2 visas, on the other hand, are designed for individuals engaged in international trade with the U.S. These visas allow for the holder to work in the U.S. while conducting substantial trade between the U.S. and their home country. Each of these visas offers unique opportunities and requirements, and it's important to consult with an immigration attorney to determine which is the best fit for your individual circumstances.

Apply for a Dependent Work Permit

For individuals who are married, spousal visa options may also be a feasible alternative. The H-4 Employment Authorization Document (EAD) allows eligible spouses of H-1B visa holders to obtain permission to work in the U.S. as long as the principal spouse has an approved I-140. Meanwhile, the L-2 and E-2 dependent visas are options for spouses of L-1 and E-2 visa holders respectively. Unlike the H-4, which requires the principal H-1B spouse to have an approved I-140D, L-2 and E-2 spouses are considered work-authorized incident to status and need not apply for an employment authorization document. These spousal visas can provide a significant source of income and support for the family as the primary visa holder establishes themselves in the U.S.

Conclusion

It is important for students to consider all of their options and work with an experienced immigration attorney to determine the best course of action. While the H-1B cap can be a frustrating and challenging process, there are still paths to success for international students. With careful planning and perseverance, students can achieve their goals and build a successful career in the United States.

Disclaimer: This article is for informational purposes only and should not be considered legal advice. It is highly recommended to seek the advice of an immigration lawyer before making any decisions.

Flavia Lloyd

USCIS Introduces Customer Experience Improvements for H-1B Cap Season

By Kris Quadros-Ragar • 01 Feb, 2024

The U.S. Citizenship and Immigration Services (USCIS) has recently announced a significant enhancement to its customer experience with the upcoming launch of organizational accounts for H-1B cap season. These measures, set to debut in February 2024 , aim to boost efficiency and foster collaboration among organizations, legal representatives, and USCIS. One of the key features of this improvement is the introduction of organizational accounts for non-cap filings and the fiscal year (FY) 2025 H-1B cap season. This innovation allows multiple individuals within an organization and their legal representatives to collaborate seamlessly on H-1B registrations, Form I-129 (Petition for a Nonimmigrant Worker), and associated Form I-907 (Request for Premium Processing Service). The introduction of organizational accounts marks a transition to a fully electronic H-1B lifecycle, covering registration, petition preparation, decision-making, and transmission to the Department of State. USCIS expects to launch organizational accounts in February 2024, with the online filing of Forms I-129 and I-907 following shortly thereafter. This shift to electronic filing is anticipated to streamline the H-1B petition process, reducing common errors and eliminating duplicate H-1B registrations. Further, as part of USCIS's broader efforts to enhance efficiency and standardize processes, the paper filing location for Forms I-129 and I-907 will transition from service centers to the USCIS lockbox. This move aims to reduce costs while maintaining a more streamlined and standardized approach to handling H-1B petitions. With these customer experience improvements, USCIS is taking a significant stride towards modernizing and streamlining the H-1B petition process. As we approach the FY 2025 H-1B registration period, Santos Lloyd Law Firm is closely monitoring the evolving landscape of H-1B changes and actively engaging in upcoming sessions to maximize the benefits of these improvements.

USCIS Reaches H-1B Cap for Fiscal Year 2024

By Kris Quadros-Ragar • 28 Dec, 2023

In a recent update, the U.S. Citizenship and Immigration Services (USCIS) confirmed that the immigration agency has received a sufficient number of petitions, meeting the congressionally mandated caps for H-1B visas for fiscal year (FY) 2024. Both the regular cap of 65,000 and the U.S. advanced degree exemption, also known as the master’s cap, of 20,000 have been reached. Non-selection notices will be sent to registrants through their online accounts over the next few weeks. For those exempt from the cap, USCIS will continue to accept and process petitions. This includes petitions filed for current H-1B workers who have been previously counted against the cap and still retain their cap number. Fiscal Year (FY) 2025 Lottery Registration for the H-1B cap lottery for FY 2025 is expected to open in March 2024. The increase in submissions from previous years, especially for workers with multiple registrations, has prompted the agency to express concerns about attempts to manipulate the selection process. If the proposed changes released by USCIS on October 23, 2023, are implemented, there is an anticipation of a more streamlined H-1B process, where registrants will be selected as individuals and not based on the number of registrations. Meanwhile, USCIS has initiated fraud investigations into alleged efforts to manipulate the lottery, which could result in the denial of petitions or referrals to law enforcement. The agency is still accepting petitions for visas exempt from the H-1B cap, such as those for jobs at colleges and universities or research institutions. Santos Lloyd Law Firm will continue to monitor developments and publish updates related to the Fiscal Year 2025 H-1B lottery as they become available. Font: https://www.uscis.gov/newsroom/alerts/uscis-reaches-fiscal-year-2024-h-1b-cap

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EB-5 Resurgence

By Kyle Huffman • 09 May, 2024

The EB-5 Immigrant Investor Visa Program has long stood as a beacon of opportunity for those seeking to establish roots in the United States. However, in recent years, its allure dimmed due to concerns surrounding integrity, program abuse, and uncertainties regarding its future. Yet, with the passage of the EB-5 Reform & Integrity Act of 2022 , the EB-5 program finds itself on the brink of a renaissance, once again capturing the attention of investors worldwide. For those unfamiliar, t he EB-5 program offers foreign investors and their families a pathway to permanent residency in the United States by investing a minimum amount in a qualifying U.S. business venture . This investment must create or preserve a certain number of jobs for American workers. Historically, the program has been popular among affluent individuals seeking not only residency but also the opportunity to contribute to the U.S. economy. However, in recent years, the program faced criticism and scrutiny due to allegations of fraud, abuse, and inefficiencies. Investors became wary, and the program's popularity waned. Prospective applicants were hesitant to commit significant funds to a program plagued by uncertainties and bureaucratic hurdles. Enter the 2022 EB-5 Reform and Integrity Act . This landmark legislation addresses many of the concerns that have plagued the program in recent years. Among its key provisions are increased investment thresholds, stricter oversight measures, and reforms aimed at promoting integrity and transparency within the program. One of the most significant changes introduced by the reform act is empowering the United States Citizenship and Immigration Services (USCIS) to more effectively monitor and investigate potential instances of fraud or abuse. Additionally, the act introduces measures to streamline the application process, reducing bureaucratic red tape and expediting the adjudication of EB-5 petitions, resulting in faster processing for legitimate investments. The passage of the 2022 EB-5 Reform and Integrity Act has injected new life into the EB-5 program, reigniting interest among investors and immigration stakeholders alike. With its enhanced integrity measures and streamlined processes, the program once again represents a compelling opportunity for those seeking to pursue the American dream. Already, we are witnessing a resurgence of interest in the EB-5 program from investors worldwide. Developers and regional centers are seizing the opportunity to capitalize on the renewed enthusiasm, presenting a diverse array of investment opportunities across various industries and regions. Moreover, the EB-5 program's revitalization holds significant implications for the U.S. economy. By attracting foreign investment, the program has the potential to create jobs, spur economic growth, and facilitate the development of communities in need. Furthermore, it underscores the United States' commitment to welcoming and harnessing the talents and resources of immigrant investors. The passage of the 2022 EB-5 Reform and Integrity Act marks a pivotal moment in the history of the EB-5 program. By addressing longstanding concerns and implementing comprehensive reforms, the act has restored confidence in the program and positioned it for a prosperous future. As investors and developers alike embrace the opportunities presented by the revitalized EB-5 program, we anticipate a resurgence in interest and activity, reaffirming the program's status as a cornerstone of American immigration policy and economic development. I encourage any prospective investors to meet with one of our skilled attorneys to discuss the possibility of securing permanent residency, and eventually citizenship, through a qualifying investment under the EB-5 Immigrant Investor Visa Program. We look forward to working with you!

Know Your Rights If You Are Participating in Protests

By Denice Flores • 02 May, 2024

The U.S. Constitution protects all immigrants, including undocumented immigrants while participating in protests in the U.S. Here is a list of some of the rights covered in the U.S. constitution to consider when you are participating in protests: Right to free speech. The First Amendment prohibits the government from restricting your right to free speech. People have the right to participate in protests, marches, and demonstrations. Right to be free from retaliation. The First Amendment prohibits the government from retaliating against you for exercising your rights such as your right to free speech. Right to remain silent. The Fifth Amendment protects you from self-incrimination and provides the right to remain silent. Right against unreasonable search and seizure. The Fourth Amendment protects you against unreasonable searches and seizures. Right to speak to a lawyer. If you are arrested or detained, you have the right to speak to a lawyer. Keep in mind, if you are undocumented and you are participating in protests, you are at higher risk of being detained by immigration officials if they are present at the protest. If you are undocumented make sure you have a plan in place if you are arrested or detained by law enforcement or immigration officials. It is important to take precautions and if you are arrested or detained you should contact an attorney immediately. If you have questions, please schedule a consultation with one of our experienced attorneys and we will be more than happy to assist you.

New USCIS Policy regarding Expedite Requests

By Kris Quadros-Ragar • 18 Apr, 2024

The latest policy alert, PA-2024-05, issued by the U.S. Citizenship and Immigration Services (USCIS) on March 21, 2024, brings revisions to the USCIS Policy Manual, specifically focusing on expediting requests. These updates aim to simplify and elucidate the process for applicants, particularly those facing emergencies or urgent humanitarian needs. The primary goal is to make it easier for applicants to understand how to request expedited processing for their various submissions, including applications, petitions, appeals, or motions, especially in cases concerning government interests or urgent situations. While USCIS has historically permitted immigration benefit seekers to request expedited application processing in specific circumstances, the process has frequently been perceived as unclear, with decisions made arbitrarily on a case-by-case basis. The recent update seeks to rectify this by providing clarity and uniformity to the process and establishing explicit criteria and documentation standards. In order to request expedited processing, applicants need to adhere to a more defined procedure. This involves submitting thorough documentation and illustrating the urgency or government relevance of their case. The recent update also explains how USCIS reviews these requests, offering applicants a better grasp of the process. The update introduces special measures for speeding up the processing of Form I-131 (Application for Travel Document) in emergency situations. This acknowledges the urgent need for certain applicants to travel. The policy also acknowledges that expedited requests may be evaluated if there is evident USCIS error, aiming to uphold fairness and accountability within the processing system. These changes aim to make the expedited request process more transparent and understandable for applicants and their representatives. In summary, USCIS's revision regarding expedited requests signifies a notable advancement in rendering the immigration process more transparent and attentive to applicants' requirements. By comprehending these updated guidelines, applicants and their representatives can more effectively navigate the expedited request procedure, ensuring that urgent cases receive due consideration. If you believe you qualify for expedited processing under the recent USCIS policy updates, feel free to contact our office, and we will be more than happy to assist you. FONT : https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5