Dear Sophie: Navigating H-1B Options Beyond the Lottery

This is another installment of “Dear Sophie,” a column dedicated to addressing immigration questions specifically related to employment within the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of these questions. She states that they contribute significantly to the dissemination of knowledge, empowering individuals globally to overcome geographical limitations and achieve their professional aspirations.

Whether you are involved in people operations, are a company founder, or are actively seeking employment in Silicon Valley, your questions are welcome. Sophie aims to address them in future columns.

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Question: H-1B Alternatives After Lottery Failures

Our organization has consistently submitted highly qualified candidates into the annual H-1B lottery over the past several years. Unfortunately, none have been selected. Furthermore, these candidates do not qualify for alternative work visas, such as the O-1A.

We have once again been unsuccessful in this year’s H-1B lottery. Are there any viable alternative strategies for securing H-1B visas for our team members?

— Soldiering on in Sunnyvale

Answer: Exploring Cap-Exempt H-1B Options

Thank you for raising this pertinent issue – you are certainly not alone in experiencing this challenge. The U.S. government limits the number of H-1B visas issued annually to 85,000, yet demand typically exceeds this number by a significant margin.

Our firm has successfully partnered with the nonprofit Open Avenues Foundation to provide companies with a Plan B. This involves securing a cap-exempt, concurrent H-1B visa for employees, bypassing the need to participate in the H-1B lottery.

This represents a timely and predictable solution, applicable whether the beneficiary is currently located inside or outside of the United States.

I recently had the opportunity to interview Danielle Goldman, co-founder and executive director of Open Avenues, on my podcast. The Global Talent Fellowship program offers a unique pathway for employers to secure H-1B visas without the uncertainty and timing constraints of the lottery process.

Goldman describes this approach as “innovation within legislation.”

How does this function? Certain employer categories are exempt from the annual H-1B cap, allowing them to file H-1B petitions at any time of the year. These cap-exempt employers include:

• Universities
• Nonprofit organizations affiliated with universities
• Nonprofit research institutions
• Government research institutions

Furthermore, there are no limitations on the number of concurrent H-1B positions an individual can hold. There are also no minimum or maximum hour requirements for H-1B positions, provided they remain reasonable.

Cap-Exempt and Concurrent H-1B Visas

Open Avenues Foundation is a non-profit organization that has established collaborative relationships with numerous universities across the United States. Consequently, Open Avenues Foundation qualifies as a cap-exempt employer.

Through its Global Talent Fellowship program, Open Avenues Foundation collaborates with universities – primarily community colleges and trade schools – to establish H-1B positions. These positions are designed for international professionals in STEM and business disciplines to mentor university students in practical learning experiences.

The foundation directly employs these professionals under a cap-exempt H-1B visa, requiring a commitment of five hours per week to this instructional role. This arrangement facilitates valuable knowledge transfer and skill development.

Furthermore, the foundation works with cap-subject (for-profit) companies seeking to sponsor international professionals for H-1B visas. Acting as a cap-exempt employer, Open Avenues Foundation initially hires the professional under a cap-exempt H-1B, also for a five-hour weekly commitment to university students.

Following approval of this initial H-1B petition by U.S. Citizenship and Immigration Services (USCIS), the for-profit company is then able to submit a concurrent H-1B petition for the same professional. This second petition is also cap-exempt and bypasses the annual lottery process.

Your organization’s immigration legal counsel can manage the filing of this subsequent H-1B application. At Alcorn Immigration Law, we are currently assisting numerous technology startups in securing this second, concurrent, cap-exempt H-1B for highly skilled individuals who have been designated as Global Talent Fellows.

The validity period of the concurrent H-1B is directly linked to the duration of the cap-exempt H-1B. The maximum permissible stay in the U.S. under an H-1B visa is six years – initially granted for three years, with the possibility of a three-year extension.

Should the individual file a self-petition for a green card, or if your company sponsors their application before the completion of the sixth year of H-1B status, the H-1B visa can be renewed pending the final approval of their green card application.

Key Benefits of this Approach

• Cap-Exempt Status: Avoids the H-1B lottery.
• Concurrent Filing: Allows for simultaneous employment with a for-profit company.
• Extended Stay: Potential for a six-year stay in the U.S.
• Pathway to Green Card: Facilitates the process of obtaining permanent residency.

This strategy provides a valuable pathway for both international professionals and U.S. companies seeking to leverage global talent. It offers a streamlined approach to H-1B sponsorship, minimizing uncertainty and maximizing opportunities.

A Mutually Beneficial Program

The Global Talent Fellowship program presents a threefold advantage. International professionals are granted an H-1B visa, enabling them to reside and work within the United States, while simultaneously mentoring students and enhancing their credentials for potential green card or alternative visa eligibility. Students, in turn, benefit from mentorship and gain practical, project-focused experience that effectively prepares them for their future professional endeavors.

Participating employers, typically subject to H-1B visa caps, can secure a qualified candidate without relying on the unpredictable H-1B lottery. Furthermore, they cultivate a talent pipeline through the students they mentor, identifying potentially highly motivated future employees.

Current Opportunities and Expansion

Currently, the Open Avenues Foundation is actively supporting Global Talent Fellows across the U.S. and is accepting applications for its fellowship initiative. While some opportunities exist for international professionals in the business sector, the majority of available positions are concentrated within STEM fields.

Ideal fellowship applicants generally possess a master’s degree in areas such as data science, computer science, software development, or engineering. During a recent discussion, Danielle indicated that the Open Avenues Foundation is receptive to creating new opportunities for H-1B candidates in diverse professional disciplines.

To facilitate this expansion, they actively seek new collaborations with universities.

Additional Resources

• The program offers a unique pathway for both professionals and students.
• Employers gain access to skilled talent and future recruitment prospects.
• Open Avenues Foundation is actively seeking university partnerships.

It is hoped that the cap-exempt and concurrent H-1B option will prove successful for your organization!

Sincerely,

Sophie

Do you have a question for Sophie? Submit it here; we retain the right to edit submissions for clarity and space considerations.

Please note that the information presented in “Dear Sophie” is intended for general informational purposes only and should not be construed as legal advice. For a comprehensive understanding of the limitations of “Dear Sophie,” please refer to our complete disclaimer. Direct contact with Sophie is available through Alcorn Immigration Law.

Sophie’s podcast, “Immigration Law for Tech Startups,” is accessible on all leading podcast platforms. Applications are currently being accepted for potential guest appearances!