How Can Employers Retain Non-Selected Workers Now That H-1B Season Is Over?

The United States Citizenship and Immigration Services (“USCIS”) has finished the lottery for FY2023. There were 483,927 registrations submitted by over 48,000 employers, and 127,600 registrations were chosen during the H-1B lottery. For those employers whose employees were selected, they have a deadline of June 30th, 2022, to file the H-1B petition.

If your employee was not selected and their employment authorization is about to end, they are probably concerned about losing their job. However, there are immigration options other than H-1B visas that may help employees retain employment authorization.

Employers who have foreign national employees who are in the Optional Practical Training program or have a two-year STEM OPT extension and whose work authorizations are about to expire do have other options for obtaining work authorization.

One option to consider would be to register for another academic program that is connected to the work they are doing for their current employer. But, the academic program must be different than the one they already finished.

This option might permit the foreign national to attain work authorization through the Curricular Practical Training (“CPT”) program. If the foreign national employee is already in the Optional Practical Training (“OPT”) program and attending a stem program, they could try to obtain a STEM OPT extension.

For those employees that do not want to continue their education, they could consider obtaining co-employment with an employer that is exempt from the H-1B cap, such as certain governmental research or non-profit organizations, an institute of higher education, or a non-profit entity associated with an institution of higher education.

If a foreign national works part-time, 5-10 hours a week for a cap-exempt employer under H-1B status, they might still be eligible to be employed full-time or nearly full time at the same time for an employer that is subject to the H-1B cap.

There is another possible option for these employees as well. Although, it will depend on the foreign national employee’s particular circumstances. If the employee has demonstrated extraordinary ability in research, athletics, education, arts, business, or the sciences, they might be able to obtain an O-1 visa.

They might also be able to obtain an O-1 visa for demonstrating extraordinary achievement in the television or motion picture industry. These applicants are required to show that they have received international or national recognition for their achievements.

Non-immigrants with this visa can remain in the United States for up to three years initially, with extensions of up to one year. The extension period will depend on the time that is needed to accomplish the initial event or activity. The non-immigrant can also be in the country for ten days before and after the validity period. Although, the individual only has work authorization during the validity period.

Additionally, non-immigrants who are qualified to obtain an O-1 visa might be able to qualify for a green card as part of the EB-1B or EB-1A categories of employment-based visas. Learn More

For businesses that do hire foreign nations, it will be necessary to complete Form I-9. This can be a complex process, and it is easy to make mistakes. One of the best ways to simplify the process is with an electronic I-9 management system which can guide HR managers through the process and simplify the management and storage of both I-9 Forms and related documentation.

Our I-9 Compliance tool will help quickly verify your employment eligibility automatically.