Maggie Murphy is a Partner with BAL and leads the Austin office. She specializes in complex, creative business immigration solutions. She has over 20 years of technical experience in immigration law and is an industry leader in PERM, I-9 and E-Verify compliance and business visa case types. We sat down with Maggie to discuss this year’s H-1B season. 

Q: What are some of the challenges with the H-1B visa program you are seeing so far this year? 

A: The cap season was drastically bad for most employers who had registered cases. We didn’t realize that the national average was so low, although we knew that our internal average was falling right into those percentages. But to have less than 20% of registrations selected was unprecedented.  

Q: What are the implications for employers? 

A: The H-1B cap and the lottery process itself has become unreliable because of these low selection numbers compared to registrations. It is forcing employers to plan so much more ahead, and then if they get good candidates who only have one or two chances at the lottery, they are reconsidering whether they should even hire those candidates, which is really a shame. In our economy, and for our U.S. businesses that are trying to attract foreign talent, they are hitting a lot of dead ends. 

Many of our clients are doing contingency planning for their valuable foreign talent who have submitted up to three times and still haven’t been selected in the H-1B lottery. This involves developing training programs for these individuals or finding roles for them in overseas offices. But some are starting to reconsider continuing to recruit from certain foreign programs, such as foreign engineering programs, for example. Particularly, U.S. employers that don’t have international offices and can’t send someone to work in an overseas office, they are considering the E-Verify program so that they can participate in STEM Optional Practical Training (OPT). And they are also starting the permanent residence process early so the individual will have a green card-based work option by the time their OPT expires.  

Q: What do you recommend employers do? 

A: Start planning as early as you can. Unless Congress makes some change, the chances are this cycle of very low selection percentages will continue. It seems to get much lower every year.  

Q: What other options do employers have?  

For employers willing to hire students, there is OPT, which is for temporary employment directly related to a student’s major area of study who is here on an F-1 visa. F-1 visas allow students to work part time while school is in session and full time when school is not in session. Students can stay in the U.S. for one year, and up to three years if they are eligible for an extension. 

Another similar option is Curricular Practical Training (CPT), also for F-1 visa students, which allows students to come to the U.S. for training and to work in paid internship positions. CPT allows for full-time or part-time work. 

The main difference between OPT and CPT is OPT can be completed before or after a student graduates. CPT must be completed before graduation. 

 J-1 visas are for students specifically in the U.S. for educational or cultural exchange programs. Students in J-1 status are allowed to work only part time, not more than 20 hours per week, during an academic year and full time only during summer and official university breaks. 

H-3 nonimmigrant visas allow foreign nationals to come to the U.S. as trainees in any field that is not available in their home country and stay for up to two years. 

Q: What are the options for employers who are not hiring students?  

A: Employers can consider hiring foreign nationals from countries the U.S. has immigration or trade-related treaties with, such as Canada and Mexico (eligible for TN visas), Australia (eligible for E-3 visas), and Chile and Singapore (eligible for H-1B1 visas). 

Q: Are you seeing any of the alternatives become more common? Are employers turning toward L-1s for intracompany transferees or O-1s for those with extraordinary abilities, for example? 

A: An emerging trend among larger companies is to establish a contingency plan specifically for their foreign population. 

What I have seen in the last five years among larger clients that have international offices is some activity in developing rotation programs and using the H-3 trainee visa category for that, especially in the manufacturing and engineering industries. Employers tend to have already established training programs that often are at least three to six months of rigorous training before employees really get into their manufacturing or engineering role. So H-3 has been popular, although it is highly regulated and scrutinized by USCIS.  

Others have started contingency planning for L-1s, developing an international rotation program so they can eventually send a talented person they want to retain in the U.S. to work in a foreign location for a couple of years and then bring them back to the U.S. 

Both the L-1 and the H-3 visas require that the U.S. employer have an affiliated office overseas to either transfer employees to or send them to after their training rotation. 

Q: If employers have questions about any of these alternatives or want to learn more about a specific option we have discussed, how can they reach you? 

A: They are welcome to email me directly at mmurphy@bal.com.