I was recently presented with the following question: I am a software engineer employed by a company on STEM OPT. My employer wanted to sponsor me for an H-1B but the petition didn’t get picked in the lottery. Do I have any chance of staying in the US or continuing to work for my employer?
My answer: You actually have quite a few options, depending on your situation. Are you a Chilean, Singaporean, Australian, Canadian or Mexican? If so, you might qualify for a country-specific visa such as H-1B1, E-1, E-2, E-3, or TN. Does your country have an office abroad or is it willing to start one to continue employing you? If you can work there for at least a year, you could qualify for an L visa based on specialized knowledge. Are you married to a US citizen or to somebody with work authorization in the United States? You might qualify for work authorization through them. If you’re at the very top of your field, there’s a chance you could qualify for an O visa as an outstanding worker. Would you consider going to school again? If so, you could become eligible for CPT or another round of OPT. Is your employer interested in having at least five foreign employees? They could become a J-1 Exchange Visitor Program sponsor.
If none of these situations seem to fit, another option is to find a part-time job at a cap-exempt employer that could submit an H-1B petition for you. Employers that don’t face the H-1B visa lottery include institutions of higher education and their related or affiliated non-profit entities, a nonprofit research organization, or a governmental research organization.
What if you got a job offer from a university? The university would file an H-1B petition for you that is cap-exempt. Once that is approved, you would need to start working at the university before your STEM OPT ends. Then, your current company could file a new H1B petition for concurrent employment. It would not be subject to the cap as long as you continue working at the university. So, you could work at the university part-time and your company part-time even though there is no H-1B number available for the company job.
Next year, the company could file another H1B petition for you in April with a start date of the following October for full-time, cap-subject employment. If your petition were picked in next year’s lottery, you could start working for your company full-time again once you received the receipt notice, as long as the university’s LCA were still valid, you weren’t out of status, and if there were no cap-gap problem. This is called “porting.” If the petition were denied, you would need to stop working for your company full-time and return to part-time work at the company and the university. If it were approved, you could continue working at the company only past the October 1, 2016 start date and through the duration of the new H1B.