The practice of H1B and non-immigrant petitions law has become more difficult as USCIS adjudicators work to find reasons to disqualify good petitions under the guidance of the Buy American and Hire American policy. When cases get denied, or the petition is simply not among those selected in the lottery, US employers and candidates should keep these alternatives in mind:

 

 

Apply again for H1B on April 1

 

If your case was not selected, apply again for the next season. If your petition was denied, don’t be afraid to try again. Adapt the petition as needed. A different USCIS adjudicator may get your petition and have a different point from the one who denied the petition.

 

File motion to reconsider

 

If the case was denied you may file a motion to reconsider within 33 days of the denial notice date. However, this will not provide the candidate a right to stay in the US and the motion has a low likelihood of being approved. It also carries a government fee of $690.

 

H-3 Trainee visa

 

A big advantage of the H-3 is that it can be applied for at any time and is good for up to 24 months. The employer would have to provide a curriculum explaining what the trainee would learn in your company. Our visa petition would argue that the training is not available in the beneficiary’s home country, and that training the candidate would benefit the American company. The disadvantage is that the candidate must spend 75% of his or her time training in a classroom setting. During the H-3 period, the remaining 25% may be spent working.  The goal is to prepare the candidate for a job outside of the US.

 

O-1 Extraordinary Abilities visa

 

The advantage is that it can be applied for at any time and is an employment visa used by many technology and science companies. The period of stay is typically up to 3 years with an option to extend. You would have to prove that the candidate meets 3 of 8 criteria to make him or her eligible. The O-1 is for employees who possess extraordinary ability in the sciences, arts, education, business, and sports. An attorney should review the beneficiary’s curriculum and determine whether a case can be made.

 

PERM

 

The Permanent Labor Certification requires the petitioning employer to conduct a series of recruitment activities to test the labor market before applying. If qualified American applicants are not found for a position through the recruitment process, the employer can submit a PERM labor certification application. The disadvantage is this can take more than a year to complete.

 

The immigration lawyers at LOIGICA® have years of experience helping U.S. employers and immigrants apply for visas. If you’re looking to hire a candidate who qualifies for a visa, they’ll guide you through the proper procedure to bring them over legally. Based in Miami, FL, they work with businesses nationwide to acquire international talent. Call (786) 292-9704 to set up a free consultation, or visit them online for more information on their services.