{5 minutes to read} What do employers who sponsored H-1B candidates, and had their petitions returned as fatalities of the H-1B lottery, do now?

As many people know, the H-1B season starts each year on April 1 and has an annual cap of 85,000 visas per year. This year USCIS announced on April 7 that it had received 233,000 applications for the 85,000 spots, leaving 148,000 petitions unopened. These petitions will be returned based on a blind lottery system, used to choose which petitions would actually be adjudicated.

The question then becomes what can employers do if they are worried about losing those candidates they were planning to employ under H-1B?

There are 2 visa categories which my firm recommends as stop-gap measures to counter returned or even rejected H-1B petitions. One has the designation J-1, and the other is H-3. Both are training visas which allow employers to bring in overseas candidates to the U.S. for up to 18 months, based on a training program that the employers create. If the employers decide next year that they want to take another try at H-1B, get through the lottery and are approved, they can change the candidate’s status from J-1 trainee or H-3 trainee to the H-1B visa.

The advantage of the “stop-gap” allows an employer to do something immediately rather than just wait for next year’s H-1B lottery.

J-1 Visa

J-1 requires a 3rd party organization that has the authority to issue a TS 2019 form. This form permits a candidate to do a J-1 training program in the U.S. through a designated sponsor, usually the same H-1B sponsor that had their petitions returned.

Each J-1 organization has its own application process. The employer applies through that organization and creates a training program. Then the J-1 organization agrees to authorize the TS 2019 form, which allows the U.S. petitioner to sponsor that individual candidate for a training program.

The one disadvantage of J-1 is that many of these organizations require the person to be overseas when they apply. That means if the candidates are here in the U.S.on an F-1 visa or optional practical training, they have to return to their home country to apply for the J-1 visa, and then come back.

H-3 Visa

The other option is the H-3 visa, which is essentially a private sector version of J-1. H-3 does not require a 3rd party organization, so essentially, the employer creates a training program and then petitions on behalf of the trainee.

This visa can be used for up to 18 months, but technically it is a 2-year visa. The one downside of the H-3 is that the time the person is in H status under H-3 counts towards the cap on H-1B. An employee with H-1B status can get up to 6 years before needing to renew. But if they’ve first done 18 months as an H-3 visa trainee, the 18 months counts toward the 6-year total that they can have under H-1B. This means they would have less time as an employee.

What the H-3 visa does, however, is allow an employer to submit a petition, and by paying the extra “premium processing” fee, get someone here under a training visa, possibly within a month to 6 weeks. Otherwise the employer has to wait until October 1, when the H-1B process would be started.

It is very important to note that employers are required to actually train the trainees and not put them in a situation where they’re doing work directly or have direct contact with clients or customers. So, while this is not a straight alternative to the H-1B, which is an employment visa, it does allow US companies to hold on to those candidates in whom they are interested by sponsoring them as trainees. If the employer decides to hire them in the future, they can take another stab at the H-1B visa then.

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