H-1B Registration Not Selected? Here are Other Options for Seeking Temporary Employment Authorization

29 March 2021 Labor & Employment Law Perspectives Blog
Authors: Anita M. Sorensen

U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS), has just closed its annual H-1B registration, and employers are anxiously awaiting news on whether USCIS has selected their registrations.  Employers rely on the H-1B classification to employ qualified foreign nationals in specialty occupations.  When the annual H-1B cap is exhausted, employers must look for other authorization to employ these professionals and may encounter significant obstacles when doing so. 

Here are some nonimmigrant (temporary) classifications to consider:

  • E-1 or E-2 classifications: The United States is a party to trade and investment treaties with various foreign countries. In most of these treaties, the agreement allows a qualifying American company to seek authorization to employ a citizen of the other treaty country. The American company may seek authorization to employ qualified foreign citizens in executive, managerial, or essential skills positions. The E-1 classification requires substantial international trade between the American company and the treaty country. The E-2 classification requires a substantial investment in the American company by citizens of the treaty country. The American company that seeks E-1 or E-2 authorization also must meet other requirements. DHS usually will admit individuals in E-1 or E-2 status in increments of up to two years. This authorization may be extended. There is no specific limit on the maximum time in E-1 or E-2 status.

  • E-3 classification: The E-3 classification provides temporary authorization for employers who seek to employ a qualified Australian citizen in a specialty occupation. The government will issue the authorization in up to two-year increments. The authorization can be extended. There is no specific limit on the maximum time in E-3 status.

  • F-1 Optional Practical Training: Foreign students who pursue bachelor or higher degrees in the United States often do so in F-1 temporary status. Following graduation, F-1 students may be eligible for Optional Practical Training (OPT), which is employment authorization. The initial increment of OPT is available for up to 12 months and is granted to foreign students who have earned degrees in any major field of study.F-1 students who have earned a degree in science, technology, engineering, or mathematics (STEM) may be eligible for up to 24 additional months of OPT (for a total of up to 36 months of post-graduation OPT).For STEM OPT, the F-1 student must work only for an employer that enrolls in DHS’s E-Verify program. The E-Verify employer must also prepare and implement a specific training program while the STEM OPT is valid.

  • H-1B Concurrent Employment: Certain organizations are exempt from the H-1B cap: qualifying institutions of higher education, affiliated or related nonprofit entities, and certain nonprofit and government research institutions. These organizations may file cases at any time. Accordingly, if a cap-exempt entity obtains H-1B authorization to employ a foreign national in a part-time position, an employer that is subject to the cap may file a case asking for concurrent H-1B authorization to employ the same foreign national in a second part-time position. Each employer must offer a bona fide part-time position. The foreign national also must be qualified for both positions.

  • H-1B1 classification: The United States has entered trade agreements with Chile and Singapore. Under these agreements, the H-1B1 classification provides temporary authorization for American employers to hire qualified citizens of Chile or Singapore in specialty occupations. DHS may admit such foreign nationals in up to one-year increments. The employer also may seek additional authorization. There is no specific limit on the maximum time in H-1B1 status.

  • L-1 classification: The L-1 classification provides temporary authorization for companies that seek to employ a foreign national through an intracompany transfer. The foreign national must have worked outside of the United States at a related entity within the same corporate group for at least one out of the prior three years. The foreign national also must have held an executive, managerial, or specialized knowledge position.

  • O-1 classification: The O-1 classification provides temporary authorization for employers that seek to employ foreign nationals who have risen to the top of their field in the arts, athletics, business, education, or science.O-1 authorization can be issued in an initial increment of up to three years and extended in one-year increments. There is no specific limit on the maximum time in O-1 status.

  • TN classification: The TN classification provides temporary authorization to American companies that seek to employ qualified citizens of Canada or Mexico in jobs that come within certain professional occupations. The TN classification arises from the United States Mexico Canada Agreement (USMCA), which replaced the North American Free Trade Agreement (NAFTA). TN authorization is available in up to three-year increments, and can be extended. There is no specific limit on the maximum time in TN status.

  • Spousal Employment Authorization Documents: Foreign nationals who are admitted to the United States in a work-authorized status are permitted to bring their spouses. Certain of these accompanying foreign spouses may be eligible to apply for temporary employment authorization. For example, accompanying spouses in E status (dependents of a principal foreign employee who is in E-1, E-2, or E-3 status) or in L-2 status (dependents of the principal foreign employee who is in L-1 status) are eligible to apply for an Employment Authorization Document (EAD).Certain accompanying spouses in H-4 status (dependents of a principal foreign employee who is in H-1B status) may be eligible to apply for EADs if the principal foreign employee is the beneficiary of an approved permanent resident petition.

  • Supplemental Selections of H-1B Registrations: USCIS may make additional selections from the H-1B registrations later this year because assigned slots are unused. For the initial selections this spring, USCIS will set a deadline for filing the legal cases seeking H-1B authorization. The deadline is likely to be on or about June 30.Thereafter, USCIS will review whether any employers failed to proceed so that H-1B slots remain unused. USCIS also may reject some of the initial case submissions. Employers that receive rejections may not be able to cure the deficiencies in time to meet the filing deadline. This will result in more unused slots. USCIS will allocate those open slots anew by issuing more selection notices. USCIS may issue additional notices in mid- to late summer.

  • Temporary Protected Status: From time to time, DHS designates a country for Temporary Protected Status (TPS) when citizens of that country cannot safely return home or the country cannot handle the return of its citizens. TPS may be granted when a foreign country has an ongoing, armed conflict such as a civil war, an environmental disaster such as a major earthquake, or when other extraordinary and temporary circumstances arise in the foreign country. At this time, DHS has designated several countries. Foreign nationals who hold TPS may obtain Employment Authorization Documents.

Conclusion

We have outlined some of the options that may provide alternate paths to obtain employment authorization.  The path forward will depend upon the facts and circumstances facing each employer.  Contact your Foley Labor & Employment or Immigration attorney to discuss your company’s circumstances and questions.

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