New York Lawyer's Legal Updates

H1B Lottery: To Play Or Not To Play

Author: Work visas lawyer Alena Shautsova

On April 7, 2016 USCIS announced that the cap for H1B petitions for the next fiscal year has been reached. It means that no new petitions subject to cap would be accepted. USCIS also announced that it received more petitions that the allocated quota and all received petitions subject to cap will be participating in the "lottery".

As a reminder, an H1B work visa is a program that allows professionals to work in the U.S. legally for a maximum period of 6 years, unless the employer also sponsors the worker for permanent residency or a green card. There are “cap” and “cap exempt” jobs depending on a) whether the employee was subject to cap within the previous years and b) if the employment is such that allows to avoid the "cap".

Despite the Immigration community’s outreach to the government to increase the quotas for legal work immigrants, so far it has not happened. Traditionally, there were more applications submitted for the 65,000 allocated cap, and 20,000 advanced degree exemption.

At the beginning of each year, many ask themselves a question: should I participate in H1B process or should I choose a safer option? May multiple employers for me? Will I be able to receive a new visa without leaving the country?

The answers to these questions should be based on specific facts and specific situations. An H1B status is good in that it allows for a legal employment in the United States. The negative here is that there is a maximum number of years one may hold it, and then the person has to change the status, be sponsored for a green card or leave the country and remain outside for at least 1 year before coming back on H1B visa. So, whether or not one should rely on H1B possibility is a personal decision. The other options might be F1 or student status, L1 status, or investors’ options. In addition, there are other “work” employer-specific visas such as P or O.

It is possible that multiple employers file for one person, but the person will have to choose one full time employer if both petitions get chosen in the lottery. It possible to have a full time plus part time employment by different employers, but USCIS may have doubts as to the individual’s ability handle such workload.

It is possible to obtain an H1B status without leaving the country, but mostly for those who hold F1 status. The reason is that usually, the person’s existing status would expire before he/she can be admitted into the US in H1B status and this would create an impermissible “gap” in status preventing USCIS from granting a change of status application.

Finally, it should be noted that it is up to an employer to sponsor or not sponsor an employee. So, if one considers having an H1B status in the US, he/she should first discuss everything with an employer and it is an employer who should hire and consult with an Immigration attorney.

09 April 2016
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