Webinar: Cap Season Contingencies: Not Selected? Cap-Exempt, O-1, TN & E-3 Fast Paths

Hi, everyone.

Good morning and welcome to our Thursday webinar on cap season contingency planning for those who are not selected in the H-B lottery this year. We’re going to give our group a couple of minutes to join and then we’ll dive in.

Okay, so welcome everyone. Thank you for joining today. My name is Jennifer Behm and I am a partner with Berardi Immigration Law and also Immigration Counsel with Barclay Damon.

Today’s presentation is specifically designed for this moment right after H-1B lottery results while we’re waiting for those to come in and when employers and employees are figuring out what to do next. So we’re going to talk about some real actionable alternatives to the H-1B cap for those who are not lucky recipients of being selected in the lottery. And I’m really going to tailor this to a very wide audience. So this will be relevant for HR professionals, employers, or even foreign national professionals themselves who are on the edge of their seat waiting to hear what their lottery selection odds are. And I’ll share information to give a roadmap forward on some options.

The lottery historically has been heavily oversubscribed in recent years USCIS has received hundreds of thousands of registrations for only one of those coveted eighty five thousand available slots if you joined me a couple of weeks ago we chatted about some of the major changes to the H-1B lottery and while we do feel that the odds of selection may increase for those who are already in the united states particularly some of those F-I graduates.

There’s still those who are unfortunately not going to be lucky. So here’s the takeaway. The H-1B lottery for many employees, it’s not going to necessarily be the end of the road. And for employers and professionals, not being selected is an opportunity to pivot and explore options that may be a good, reliable alternative. So with that, let’s dive into it. I know this is an urgent and stressful time, and let’s dive in.

So for those who are not selected, and this is the starting point for that conversation, we definitely want to first assess what is the individual’s current immigration status if they’re here in the United States, because oftentimes that can be a very natural path forward. Each status has its own timelines and constraints. I always liken non-immigrant immigration to a train and different train cars are representative of different visa categories. And each of those train cars has its own set of rules and regulations for someone to take a ride on that train into the United States.

Kind of stretching behind, we have that green card train, the immigrant train, the lawful permanent residency journey that takes a lot longer to get someone into the United States.

So if somebody is already here in the US, we want to assess their current status and go from there. We also very tied inherently to that is what are the timing constraints? Can alternatives be prepared quickly? Do some alternatives take weeks for preparation and sort of a long-term plan? You need to know how much runway we have to work with when we’re strategizing what are alternative options. And then once you know the status and the timing constraints, we can then prioritize which category to pursue. So let’s dive into it.

Okay, if you have an employee or you are the foreign national who is here with F-1 status, F-1 are for students who are studying in the United States or graduates from US universities.

We see a lot of F-1 graduates have something called optional practical training, OPT. Many graduates are eligible for one year of open work authorization after they graduate. And on top of that, students who’ve graduated with certain STEM majors, science, technology, engineering, or math, and we’d look at the student’s I-20 to determine if they’re eligible, they may be eligible for what we call the two-year STEM OPT extension. So this is a significant opportunity for STEM OPT professionals, researchers, data scientists, engineers. These individuals may be eligible for extended work authorization. And thus, if they’re not selected in this year’s H-1B lottery, they may have additional opportunities. So this is one of the first things we look at for those who were here in F-1 status with and working in the United States under OPT.

Next slide, please.

We also have an opportunity to, well, here’s something that a lot of people don’t realize. Not all H-B petitions are subject to the annual cap. So we call this the cap exempt H-1B pathway. And this is for certain employers, specifically colleges, universities, nonprofit organizations that have affiliations in place with universities.

We often see this with teaching hospitals and also government research organizations. Those types of employers can actually file H-1B petitions at any time with no lottery required. And this is a really significant opportunity.

So the strategy here is to explore whether there’s an opportunity for a current employer to perhaps create a partnership arrangement where they can still employ their or maybe through a series of relationships still engage their ideal employee, but maybe have a partnership with a university or a nonprofit that has an affiliation with a university to make that employee cap exempt.

This can be a little bit complex, and sometimes it is an underutilized option for H-1B employers, and sometimes it’s a dead end, especially if you’re in the private sector. Sometimes this just is not a realistic relationship or opportunity or connection that exists.

But keep an open mind on it because sometimes just learning about the cap exempt pathway can be enough to get a company’s wheels spinning. And we’ve seen opportunities where we can get someone in under a cap exempt strategy.

So if your wheels are turning and you think that this might be something you want to explore, give us a call and we can certainly help you explore that.

We also have the O-1 visa category for individuals who have extraordinary ability. This is a high bar. And while it is a high bar, but it’s also sometimes more attainable than many people think.

Updated USCIS guidance in recent years has acknowledged that STEM professionals, especially those in tech, engineering, AI, that’s a big one right now, and related fields can often qualify for the O-1 category based on their contributions like high impact research, patents, significant roles with notable companies, and having peer recognition by other experts in their field.

The O-1, unlike the H-1B, it’s not subject to a cap. This type of petition can be filed at any time. And if you file by premium processing, you can get a decision in three weeks.

From that timing component, however, this is not a quick turnaround. These petitions require a demonstration that the candidate, the applicant has a very strong professional profile. And so it does require a collaborative effort with the employee or the applicant to show what sorts of publications they have, what peer research they’ve done. Do they have any leadership roles? What types of awards have they won? But for those who have, especially PhD graduates in the United States who do have some nice contributions to a niche field, this can be something to certainly further explore.

And even if they’re not eligible for an O-1 right now at this moment, maybe they have underlying STEM OPT time and you can do some contingency planning in the background of, okay, we’ll try them in the H-1B lottery next year.

If they’re not selected, maybe by then they will have achieved certain professional accomplishments that make them eligible for the O-1 criteria.

So don’t write this off. This is for individuals who have extraordinary ability in science, business, technology. And this can be a very nice petition option, but it does require some work to be put into it.

For our Canadian and Mexican professionals, the TN category can be a really great option for work authorization. And while oftentimes we hear, oh, we prefer the H-1B because it allows for dual intent, we prefer the H-1B over the TN, this is still a really valid, viable option for Canadian and Mexican nationals only.

The TN visa and work authorization category is rooted in the USMCA agreement, which was formerly NAFTA. And under that treaty, there’s about seventy or so designated occupations, including engineers, scientists, accountants, lawyers, computer systems analysts, and many others. We’ve done TNs on virtually almost every occupation under that treaty. Some of my favorites are zoologists.

And the nice thing about the TN category is that there’s no lottery. There’s no annual cap. Canadian citizens can apply at the port of entry right on the border for a decision to be issued on the spot. And Mexican citizens can apply at a U.S. consulate, which is generally faster than traditional H-1B processing.

The key requirement for a Canadian or Mexican to qualify for TN work authorization is one, of course, proving their eligible citizenship. They also must have a job offer with an American employer. And the job offer needs to be in a position that fits one of those listed occupations under the treaty.

Finally, the applicant also needs to have education that is aligned with that professional job offer and the occupation. And there are some quirky nuances when it comes to TN.

So we look at those on a case by case basis, but engineers generally, if you have an engineering degree, civil engineer, mechanical engineering, you qualify for TN as an engineer.

There are certain occupations like the management consultant that tends to be heavily scrutinized. So management consultants, a lot of business professionals who may not have one of those specified degrees or job offers in a special, in one of the designated occupations.

Management consultants are often used as a catch-all under TN. Not appropriate, not a good strategy.

Management consultants are professionals that come into an organization on a temporary basis, look at a problem, provide recommendations to fix and address that problem, and then they get out. Company workers are doing the actual implementation of the recommendations the consultant provides.

So this is not, the TM category is not a good one for generic professional individuals with business degrees unless it’s truly a consulting role.

But yeah, if you’re a Canadian or a Mexican, definitely consider this.

I don’t have a slide on, well, my next slide is for E-3s, which is very similar to the H-1B category for Australian nationals. So if you have an Australian employee, know that the H-1B functions similarly to the E-3.

But critically, the E-3 can be applied for at the US consulate or embassy, and that can be approved on the spot. There’s approximately over I think, ten thousand five hundred spots for Australians annually. And historically, that cap has never been fully used.

So the E-3 does require a labor condition application and a public access file. So there is a little bit of a lift and compliance considerations on the employer’s side, but this is still a great category.

And then I don’t have a slide dedicated to it, but if you have a Chilean national or a national from Singapore, we have a very similar equivalent called the H-1B1, not to be confused with the H-1B, but the H-1B1 visa is similar to the E three. But again, that’s only for Chileans and nationals from Singapore.

So every now and then we cross, we’ll get a passport and we see that it’s an Australian candidate and this is a nice pivot from the H-1B or a backup to the H-1B and not being selected. So keep that in mind.

We have the L-1 Intracompany Transferee Visa. This is designed for employees who have at least one year of full-time employment with a foreign affiliate, subsidiary or parent company to the US sponsoring entity.

So this probably is not going to be an immediate fix for someone who is not selected in the H-1B lottery. To first qualify for the L-1, that individual has to have been employed abroad for a one year period full time with an affiliated company to the US petitioner.

There’s two types of tracks or categories for the L-1 intra-company transferee. And that is the L-1A for managers and executives and the L-1B track for employees with specialized knowledge. This means deep expertise in a company’s products or services or procedures, something that makes them have specialized knowledge that we can argue it’d be difficult for the U.S. petitioner to pull someone off the street and train them.

And it’s generally something that takes at least a year, ideally two years or more of deep expertise.

The key requirement here, again, is that that employee has to have been employed abroad for a one-year period. If you don’t have that to start with, the L-1 is not an option.

But this is great for companies that have operations outside of the United States. And for long-term planning purposes, it can be a really powerful tool to leverage and to keep a valued employee within your group of companies, transfer them abroad for at least a year or longer, and then bring them back in under the L-1A category.

So certainly relevant for global companies, tech companies that have operations abroad, consulting firms with international workforces.

We leverage the L-1 just given our proximity on the border. We work with a lot of Canadian companies that have U.S. operations as well. So we’re constantly leveraging the L-1 category in many creative ways.

Something to consider.

And then finally, for those who are thinking about entrepreneurship or a business investment, the E-2 Treaty Investor Visa offers a completely different pathway.

Unlike the H-1B, the E-2 does not necessarily need to come with sponsorship. It can be used as a self-sponsored category. So if you are a foreign national tuning in and you’re feeling that this might be the end of the road with your employer, yet you have that entrepreneurial spirit and some funds to make a business investment, the E-2 category could be a viable path to starting a business or purchasing an existing one.

The foreign national owner of a business does need to be of a treaty country. So this is not available to individuals with all nationalities. We do not have an E-2 treaty with Indian and Chinese with India and China. So Indian and Chinese nationals, unfortunately, are not eligible for the E-2.

But for those that do qualify, this could be a creative alternative. And again, especially for those professionals who have entrepreneurial ambitions.

Similarly, if you are a U.S. company that is owned all the way up to the top by a non U.S. company and maybe it’s a Canada owned company or a U.K. owned company, and your employee that was not selected in the H-1B lottery is that same nationality, the E-II may already be lined up for an opportunity here.

So don’t rule the E-2 out, especially if you’re a U.S. company that is ultimately owned and controlled by foreign nationals.

I think that brings us to the end.

One thing is, you know, that constantly comes up is, well, why can’t we get our employee a green card? Why can’t we just go right to the green card path?

And the reality is you technically can. You can bypass non-immigrant visa options altogether, but know that because of the length of time that the green card takes and because of backlogged numbers in the amount of green cards that Congress has allotted for issuance each year, we have these backlogs.

And so going back to that metaphor that I provided in the beginning of two trains going into the United States, the reality is it takes a really long time to get a green card.

That being said, for certain professionals pursuing permanent residency directly, it may be a strategic tool. Companies often use sponsorship immediately as a recruiting tool.

And there are a couple of different ways to obtain a green card. One of the relevant processes here is called PERM labor certification process. That does require an employer to test the US labor market and prove that they can’t find a qualified American worker who’s able and willing to do the job that you permanently want to offer to a foreign national.

PERM green cards take a long time. You’re looking at at least from start to finish over a three year process. I’m saying over three-step process, you’re looking at at least three, if not four or longer years at a minimum.

The National Interest Waiver or NIW does allow highly qualified professionals to self-sponsor themselves without needing employer sponsorship. But again, at times there are backlogs, particularly for Indian and Chinese nationals.

They can get the groundwork laid out to be eligible for a green card, but that may not be an immediate fix to not being selected in an H-B strategy.

So the point is, you know, this is still something to consider. It may not be an immediate solution to needing or keeping someone here in the United States, but this can be groundwork that is laid in the background while also looking at short-term immediate fixes like some of the other visa categories that we were considering.

And know that technically a foreign national does not need to be in the United States to go through the green card process, to have green card sponsorship.

Now, that being said, I also understand that many employers are hesitant to consider green card sponsorship for foreign nationals when they haven’t tested the waters necessarily with that employee working in the States.

But don’t be afraid of being creative and leveraging immigration solutions to keep talent. I mean, when a valued employee isn’t selected in the H-I-B lottery, there really are some workforce continuity and retention and business risks issues.

And so employers who explore alternatives and leverage immigration sponsorship, they can often find that, hey, this can be a very powerful tool for us to demonstrate commitment to our employees. And that can be a really good aspect of your workforce planning.

Finally, another backup, a little bit more bold, but I want to end the alternative section with an option that employers and professionals are considering seriously, and that is moving north to Canada.

When it comes to professionals, Canada has a more flexible and somewhat welcoming immigration system. I do understand that Canada has tightened the reins a bit, but I also hear that retaining talent, especially for those who are working in tech and have advanced degrees, this can be a way for individuals and companies to stay happy.

Maybe the US company can engage a Canadian PEO to keep that employee. And while the employee may be physically based in Canada, they can still engage on a regular basis with the US entity.

So don’t give up on that. This is sometimes a strategic and helpful move to keep an employee close proximity on the East Coast.

So thank you all for your time and attention today. I hope this has given some clarity and confidence in alternative paths.

And I’m happy to take any questions you have, whether it’s about a specific visa category or a particular employee situation, how to prioritize leveraging immigration as a retention tool within your company, given the constraints.

Otherwise, I love working with corporate clients. So please don’t hesitate to reach out to me directly on LinkedIn or at my email, which is posted here on the slide.

And of course, my team at Berardi Immigration Law is always here to help. We have a robust team of experts, so we welcome your contact and poke around our website, follow us on LinkedIn, and thank you all for joining this afternoon.

Go enjoy your lunch.