Recently, the United States Citizenship and Immigration Services ("USCIS") completed the FY2023 H-1B lottery. This year, more than 48,000 prospective employers submitted a record number of 483,927 registrations, of which 127,600 were selected in the H-1B lottery. If your employee was selected, the deadline to file an H-1B petition is June 30, 2022. For those not selected, and if employment authorization for your employee appears to be coming to an end, there may still be immigration options that employers may wish to discuss with their foreign national employees to ensure they are able to maintain employment authorization going forward.
Foreign nationals who were not selected in the H-1B lottery and who are approaching the end of their F-1 Optional Practical Training ("OPT"), or the two-year STEM OPT extension, may consider enrolling in another academic program in an area of study related to their work with the employer. However, it cannot be a repeat of an academic program already completed. At times, this option allows an individual to obtain employment authorization based on Curricular Practical Training ("CPT"). Alternatively, those who are currently working under OPT and are enrolled in a STEM program may be eligible for the STEM OPT extension.
Aside from returning to school, a foreign national may seek co-employment with an H-1B cap-exempt employer, such as an institution of higher education, nonprofit entity related to or affiliated with an institution of higher education, or certain nonprofit or governmental research organizations. In this scenario, if a foreign national is employed under H-1B status with a cap-exempt employer in a part-time capacity (i.e., 5-10 hours per week), they may be eligible to work concurrently for a cap-subject H-1B employer in a full-time, or near full-time capacity.
In addition to these options, there may be other visa opportunities available, depending on a foreign national's specific situation. We are happy to assist employers as they explore other options for their foreign national employees to maintain employment authorization.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.