Options for Foreign National Employees Who We’re Not Chosen in the H-1B Cap Lottery

Options for Foreign National Employees Who We’re Not Chosen in the H-1B Cap Lottery
April 7, 2023

On March 27, 2023, the U.S. Citizenship and Immigration Services (USCIS) made an announcement about the 2024 fiscal year H-1B cap. According to the USCIS, the agency has completed the lottery. This announcement likely means the agency has already selected who would receive H-1B visas through this lottery. However, based on the previous year’s results, this may represent only a fraction of the filed registrants.

Considering past examples, few employers will receive a selection for their registered foreign national workers. In addition, with the selection process completed, employers must now consider alternatives to retain employees. Here are a few options employers may use to keep their workers.

Post-Graduation STEM OPT Extension to Work Authorization

Foreign national employees graduating from a U.S. university could apply for one-year work authorization. They may do so under the Optional Practical Training (OPT) program. Furthermore, employers with workers reaching the end of this authorization could request two more years. However, the employee must have a qualifying STEM degree to obtain additional employment authorization.

Under a 2022 Federal Register notice, the DHS added 22 fields of study to the list of qualifying programs. As a result, more employers with workers not selected in the H-1B lottery could determine eligibility for the STEM OPT extension. However, employers should also understand that this option does not lead to a long-term immigration status.

Continuing Education

Foreign national employees not selected in the H-1B lottery may choose to acquire or retain an F-1 status. They may do this through specific programs that make them eligible for Curricular Practical Training (CPT). This program authorizes them to work full-time; however, the position must relate to their degree program.

Employees could receive additional opportunities to enter the H-1B cap lottery through this program. They may also acquire more skills through educational and work experiences. These benefits would add significant value to their careers and employers. However, employers must understand that employees who work full-time for a minimum of 12 months under the CPT become ineligible for OPT and STEM OPT.

O-1 Status for Individuals with Extraordinary Ability

Foreign national workers with extraordinary ability in their field could apply for the O-1 status. However, employers must petition the employee’s qualification for the status. In this petition, they must prove that the employee has demonstrated extraordinary achievement in their field.

Though many find the bar high, it has proven substantially rewarding. The USCIS also updated its policy manual to encourage employees to apply for O-1 status. For example, the agency introduced new guidance about advanced STEM degrees serving significant benefits in the adjudication process. In addition, employers can work with their foreign national employees to determine if they possess professional accomplishments that qualify for the O-1 status.

Final Thoughts

With the H-1B lottery complete, employers should know of other options for their beneficiaries. Regardless of how the beneficiaries maintain or gain work authorization, they must complete or update the employment eligibility verification (Form I-9). The best way to ensure continued compliance is with an electronic I-9 management tool. This tool can provide many valuable features, including step-by-step guidance and reminders when action is necessary to ensure continued compliance.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.