Dear Sophie: How can I get an H-1B without the lottery?

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

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Dear Sophie:

For the past few years, our company has put very promising candidates into the annual H-1B lottery. None of them have been selected — and none of them meet the requirements for other work visas like an O-1A.

We lost out again in this year’s H-1B lottery. Are there any other ways we can obtain H-1Bs for our team members?

— Soldiering on in Sunnyvale

Dear Soldiering:

Thank you for your timely question — you are not alone! Many employers face the same frustration given that the number of H-1B visas the government issues each year is capped at 85,000, while typically more than twice that number are sought by employers annually.

At my Silicon Valley immigration law firm, we’ve been delighted for the opportunity to collaborate with the nonprofit Open Avenues Foundation to support private companies with a Plan B: a cap-exempt, concurrent H-1B for their employees, without needing to go through the H-1B lottery.

It’s a timely, predictable solution that supports teams whether the beneficiary is currently outside or inside the United States.

I recently interviewed Danielle Goldman, co-founder and executive director of Open Avenues, on my podcast. Through the Global Talent Fellowship program, the foundation offers a unique solution for employers like you to have a Plan B for H-1Bs: It’s possible to obtain an H-1B visa for an existing or prospective employee without going through the H-1B lottery process — or the randomness and timing restrictions that come with it. Goldman refers to the program as “innovation within legislation.”

So how does that work? Well, first off, you should know that four categories of employers are exempt from the annual H-1B lottery, meaning they can apply for an H-1B visa at any time of year and their pool of H-1B visas is not capped. The four categories of employers that are eligible for cap-exempt H-1Bs include:

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

Also, there is no limit on the number of concurrent H-1B jobs that an individual can hold. And there is no minimum requirement on the number of hours an individual must work in an H-1B position and no maximum number of hours an individual can work on either a single H-1B or concurrent H-1Bs (all within the bounds of sanity, of course!).

Cap-exempt and concurrent H-1Bs

Open Avenues Foundation is a nonprofit organization that has developed partnerships with several universities throughout the United States. As such, Open Avenues Foundation is a cap-exempt employer.

Under its Global Talent Fellowship program, Open Avenues Foundation partners with universities — mostly community colleges and trade universities — to create H-1B positions for international professionals in STEM and business fields to lead university students in experiential learning projects. The foundation hires these professionals under a cap-exempt H-1B visa to work five hours per week in this teaching role.

The foundation also partners with cap-subject (for-profit) employers that want to sponsor an international professional for an H-1B. As a cap-exempt employer, Open Avenues Foundation hires that professional on a cap-exempt H-1B to work five hours per week with university students.

Once that H-1B is approved by U.S. Citizenship and Immigration Services (USCIS), the private company can then file a concurrent H-1B for the professional. It’s cap-exempt as well and is not required to pass through the annual lottery. Your company’s immigration law firm can work on this second H-1B for you. At Alcorn Immigration Law, we’re supporting many technology startups to obtain this second, concurrent, cap-exempt H-1B for talented individuals employed at technology startups who were selected as Global Talent Fellows.

The concurrent H-1B can be valid for as long as the cap-exempt H-1B is. The maximum stay in the U.S. under an H-1B is six years — an initial stay of three years and one renewal for another three-year period. If the individual self-petitions for a green card or your company sponsors that individual for one before the sixth year of the H-1B, the H-1B can be renewed until the individual receives the green card.

Triple win

The Global Talent Fellowship program offers a triple win: International professionals get an H-1B visa to live and work in the U.S., mentor students and build up their qualifications to meet green card requirements or other visa requirements. University students gain a mentor and real-world, project-based experience that prepares them for future careers. The normally cap-subject employer can fill its H-1B position while avoiding the randomness of the H-1B lottery — and has a pipeline to other highly motivated prospective employees in the students being mentored.

Open Avenues Foundation is currently supporting Global Talent Fellows all over the United States and accepting applications to its fellowship program. While the program has some opportunities for international professionals in business, most of the opportunities are in STEM fields. Fellowship candidates ideally have a master’s degree in data science, computer science, software development or engineering. In our interview, Danielle told me that Open Avenues Foundation is open to developing new opportunities for H-1B candidates in other professional fields. In order to do this, they welcome new university partnerships.

I hope the cap-exempt and concurrent H-1B option yields success for your company!

All my best,

Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, “Immigration Law for Tech Startups“, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!