Dear Sophie: Any tips for presenting a strong H-1B case? What if I’m not selected?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I’m currently on regular OPT. My employer will sponsor me in the H-1B lottery in March.

Can you share any tips for presenting a strong H-1B case if I’m selected? If I’m not selected, then what?

— Proficient and Pragmatic

Dear Proficient,

Thank you for asking the two questions that I’m sure are on every first-time H-1B candidate’s mind. Even though the H-1B lottery isn’t until March, it’s important for companies and their immigrant employees to start getting things in order right now. With the tech layoffs, there is a chance of fewer registrations for the upcoming lottery, which could lead to higher chances of selection.

Tips for a strong H-1B petition

If you’re selected in the lottery, your company will be notified by March 31 and will have until June 30 to file your petition for the H-1B specialty occupation visa. As always, I suggest that employers work with their immigration attorneys to establish a strategy now.

If you are selected in the lottery, your company will need to craft a strong H-1B for you with its legal counsel. Crafting a strong H-1B petition begins with getting a Labor Condition Application (LCA) approved by the U.S. Department of Labor. An approved LCA is required for all H-1B petitions. The Labor Department typically decides on whether to certify an LCA within 10 business days.

For the LCA, your employer must promise to pay you at least the prevailing wage based on your position and work location and ensure that your employment conditions won’t negatively affect American workers. Employers don’t need to submit evidence to the Labor Department with the LCA, but they must post a copy of the H-1B notification, which can be done electronically, keep all supporting documents in a file and make it available for public viewing.

For the H-1B specialty occupation visa, your employer will need to fill out Form I-129 (Petition for a Nonimmigrant Worker) and include evidence and supporting documents. Crafting a strong H-1B petition also requires the following:

• Your employer must demonstrate that the “specialty occupation” you are offered requires a bachelor’s degree and show that you have the degree. If your position falls within the STEM category, proving the need for a bachelor’s degree is often easy. It’s more challenging for non-STEM positions and certain specific occupations, such as IT, programming, data analysis or other analyst jobs.
• You will need to collect documents that show you have maintained your immigration status while here in the U.S., including all I-20s issued to date for students and any employment authorization document (EAD) cards.
• Avoid mistakes and omissions by double-checking your forms and documents. Make sure the information contained in the LCA matches Form I-129 and everything that needs to be signed is signed.

Plenty of other options!

If you don’t get selected in the H-1B lottery this year, you have other options. If you graduated with a STEM degree that’s on the Department of Homeland Security’s STEM Designated Degree Program List, you could get a two-year extension of OPT (Optional Practical Training), which is known as STEM OPT. With the additional 24 months, your employer can register you in the H-1B lotteries in 2024 and 2025 as well.

Alternatives include:

• Cap-exempt H-1B visa: Many employers, including government agencies, universities and nonprofits connected to universities, are exempt from the annual H-1B cap and lottery and can sponsor individuals for cap-exempt H-1B visas, which can be applied for throughout the year. If you get a cap-exempt H-1B under a program like the one offered by the Open Avenues Foundation, your employer can apply for a concurrent cap-exempt H-1B for you.
• O-1A visa: This visa is for individuals with extraordinary ability in the sciences, education or business and has more stringent qualification requirements than the H-1B. Starting last year, immigration officials have made it easier to qualify for an O-1A by expanding the achievements that qualify for one of the criteria. Read this previous Dear Sophie column for more details.
• J-1 visa: Most employers cannot directly sponsor an individual for a J-1 visa, which is a work-and-study visitor exchange program. The U.S. State Department designates public and private sponsor organizations to supervise the exchange programs and application process that can be used to support a J-1 at a specific company.
• L-1 visas: If your employer has an office outside of the U.S. — or you can set up one for them — and you can work in that overseas office for 12 months or more, your employer can then transfer you back to the U.S. under an L-1A visa for executives and managers or an L-1B visa for employees with specialized knowledge. No annual quotas exist for L-1 visas, and like the H-1B, L-1 visas are “dual-intent” and can lead to a green card.
• F-1 visa: You could continue your studies and earn a higher degree. Individuals with a master’s degree or higher from an accredited university in the U.S. stand a better chance of being selected in the H-1B lottery.

If you’re a citizen of Chile, Singapore, Australia, Canada or Mexico, you have additional options:

• H1-B1 visa: If you’re a citizen of Chile or Singapore, you’re eligible for an H1-B1. Each year, 1,400 H1-B1 visas are reserved for Chileans and 5,400 are reserved for Singaporeans. These visas are rarely exhausted.
• E-3 Visa: If you’re an Australian national, you’re eligible for an E-3 for “specialty occupation” professionals who have specialized theoretical or practical knowledge. Like the H-1B, an LCA is required. A maximum 10,500 E-3 visas are available annually, but they are rarely exhausted.
• TN visa: If you’re from Canada or Mexico, you could work temporarily under a TN (Treaty National) visa for certain occupations. TN visas have no annual quota and allow for unlimited extensions as long as the employer and conditions of employment remain the same.

I’ll be keeping my fingers crossed that you’re selected in the lottery!

All my best,

— Sophie

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