U.S. Citizenship and Immigration Services announced on April 13 that it had completed the annual H-1B non-immigration visa lottery selection, having received approximately 233,000 petitions for fiscal year 2016 (beginning in October 2015), an increase of more than 35 percent from last year (172,500 petitions). USCIS randomly selected petitions to meet the general category cap of 65,000 and the advance degree exemption of 20,000. Based on this year’s numbers, it appears that barely more than one petition in three was selected.

Alternatives to H-1B

Since the majority of employers who filed under the H-1B cap had their cases rejected, employers must consider alternatives for sponsored employees. For instance, employees just graduating or with additional Science, Technology, Engineering and Mathematics (STEM) on Optional Practical Training (OPT) time can try again for next year’s H-1B cap and work this year on their OPT work authorizations. For F-1 students who will run out of OPT time this summer and new employees who are not working in another renewable status, other creative solutions may be available.

Employers with related foreign entities can assign the employee to work at the foreign entity for one year, and then sponsor the employee back to the U.S. as an L-1 intracompany transferee. This process is easier if the employee is a manager because the L-1B or specialized knowledge category, another possibility, is highly scrutinized and suffers from a disproportionately high denial rate. The L-1B guidance is under agency review and will be revised to make this a more attractive option than the H-1B for employers with related foreign entities.

If the employee has an extremely well-regarded skill set, an O-1 visa may be the right choice. O-1 is the category for workers of “extraordinary ability” and is reserved for those who have shown extraordinary ability in the fields of science, education, business, athletics, or the arts. To qualify, petitioners must show that they can meet at least three of the following criteria:

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

• Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field.