Plan B: Alternative Paths to US Employment for F-1 International Students if H-1B Cap Selection is Missed

Flavia Santos • February 20, 2023

International students on F-1 visas who have not been selected in the H-1B cap lottery face a challenging situation, but there are still alternative immigration options available. These options may require more effort and planning, but they can ultimately lead to the same goal of obtaining a work visa in the United States.

Assess your Remaining Time

It is imperative for individuals currently participating in the Optional Practical Training (OPT) program to assess the remaining time before its expiration. The expiration date of the OPT can significantly affect one's eligibility to continue residing in the United States, particularly if they intend to register for the H-1B visa lottery in 2024. For example, in the event of being selected in the lottery and the OPT expiring on or after April 1, 2024, the individual would be entitled to the H-1B Cap-Gap extension, thereby enabling a continuation of their OPT status until the H-1B visa becomes effective. However, if the OPT validity period expires before April 1, 2024, the individual would be required to depart the US within 60 days after the OPT expiration date. The table below illustrates this scenario.

Gear Up for Back-to-School Season

For students seeking employment opportunities in the United States, enrolling in an academic program that offers Day 1 Curricular Practical Training (CPT) is another viable option. This would enable students to start working immediately, even as they continue their studies. Furthermore, students who have already secured a job offer may be able to work on CPT while awaiting the outcome of their H-1B petition in the annual cap. To take full advantage of this extended period, it would be wise to register for the H-1B cap lottery before the expiration of the OPT period.

Consider the L-1 Visa if you Work for a Multinational Company

As a viable option for professionals seeking long-term employment in the United States, working for a multinational company abroad for a year followed by an intra-company transfer via an L-1 visa can offer numerous strategic benefits. The L-1 visa, designed specifically for such transfers, allows employees of multinational corporations to move to a U.S. subsidiary, affiliate, or parent. The L-1 visa is characterized as a dual intent visa which allows for the flexibility to pursue both temporary work and study opportunities in the country, as well as long-term residency. It also has a validity period from 5-7 years. While this path requires the individual to work abroad for a year, it can prove to be a valuable long-term solution for working in the United States.

TN Visa for Canadian and Mexican Nationals

The TN visa is a nonimmigrant visa category that allows Canadian and Mexican citizens to temporarily work in the United States in certain professional occupations, as listed under the United States-Mexico-Canada Agreement (USMCA). The requirements for a TN visa include a job offer from a U.S. employer, a pre-arranged full-time or part-time job in one of the eligible professions, a bachelor's degree or its equivalent, and proof of professional qualifications. The validity period for a TN visa varies depending on the length of the job offer, but it can be issued for up to three years and can be renewed indefinitely.

Entrepreneurs and Investors

For those who are more entrepreneurial, the E-1 and E-2 visas, on the other hand, are designed for individuals engaged in international trade with the U.S. These visas allow for the holder to work in the U.S. while conducting substantial trade between the U.S. and their home country. Each of these visas offers unique opportunities and requirements, and it's important to consult with an immigration attorney to determine which is the best fit for your individual circumstances.

Apply for a Dependent Work Permit

For individuals who are married, spousal visa options may also be a feasible alternative. The H-4 Employment Authorization Document (EAD) allows eligible spouses of H-1B visa holders to obtain permission to work in the U.S. as long as the principal spouse has an approved I-140. Meanwhile, the L-2 and E-2 dependent visas are options for spouses of L-1 and E-2 visa holders respectively. Unlike the H-4, which requires the principal H-1B spouse to have an approved I-140D, L-2 and E-2 spouses are considered work-authorized incident to status and need not apply for an employment authorization document. These spousal visas can provide a significant source of income and support for the family as the primary visa holder establishes themselves in the U.S.

Conclusion

It is important for students to consider all of their options and work with an experienced immigration attorney to determine the best course of action. While the H-1B cap can be a frustrating and challenging process, there are still paths to success for international students. With careful planning and perseverance, students can achieve their goals and build a successful career in the United States.

Disclaimer: This article is for informational purposes only and should not be considered legal advice. It is highly recommended to seek the advice of an immigration lawyer before making any decisions.

Flavia Lloyd

Streamlining Visa Extensions: The Deference Policy Codified in the H-1B Modernization Rule

By Kris Quadros-Ragar • January 16, 2025

A key development occurred in December 2024, when the deference policy was officially written into regulation (the “H-1B modernization rule”), set to take effect on January 17, 2025. Once it takes effect, USCIS adjudicators must apply the deference policy to extension requests involving the same employer, the same employee, and the same job details. USCIS can still decide not to defer to the previous approval if: There was a material error in the earlier approval. There has been a material change in circumstances or eligibility. New information raises doubts about eligibility. Even in these situations, officers must explain why they are not deferring. Importantly, USCIS does not have to defer to decisions made by other agencies, such as the U.S. Department of State or Customs and Border Protection. By turning the deference policy into a regulation, it becomes more difficult for future administrations to eliminate it quickly. Any attempt to rescind or change the policy now requires a lengthy rulemaking process that includes a public notice-and-comment period. Key Takeaways for Employers Greater Predictability: The deference policy, now a regulation, gives employers more certainty that extension petitions will be approved if there are no major changes in the employee’s role or the employer’s situation. Potential Changes Ahead: A future administration could still try to rescind this rule, but they must follow a formal regulatory process, which takes time and offers employers some warning. File Extensions Early: Employers can submit extension petitions up to six months before a visa expires. Filing early can help avoid unexpected policy shifts and minimize risks of RFEs or denials. Overall, the codification of the deference policy is a significant step that offers much-needed stability and efficiency in the U.S. immigration process. By planning ahead and staying informed, employers can take advantage of this improved predictability. As always, working closely with an immigration attorney ensures that extension applications are accurate, well-prepared, and filed promptly—especially during times when policy may evolve.

USCIS Introduces Customer Experience Improvements for H-1B Cap Season

By Kris Quadros-Ragar • February 1, 2024

The U.S. Citizenship and Immigration Services (USCIS) has recently announced a significant enhancement to its customer experience with the upcoming launch of organizational accounts for H-1B cap season. These measures, set to debut in February 2024 , aim to boost efficiency and foster collaboration among organizations, legal representatives, and USCIS. One of the key features of this improvement is the introduction of organizational accounts for non-cap filings and the fiscal year (FY) 2025 H-1B cap season. This innovation allows multiple individuals within an organization and their legal representatives to collaborate seamlessly on H-1B registrations, Form I-129 (Petition for a Nonimmigrant Worker), and associated Form I-907 (Request for Premium Processing Service). The introduction of organizational accounts marks a transition to a fully electronic H-1B lifecycle, covering registration, petition preparation, decision-making, and transmission to the Department of State. USCIS expects to launch organizational accounts in February 2024, with the online filing of Forms I-129 and I-907 following shortly thereafter. This shift to electronic filing is anticipated to streamline the H-1B petition process, reducing common errors and eliminating duplicate H-1B registrations. Further, as part of USCIS's broader efforts to enhance efficiency and standardize processes, the paper filing location for Forms I-129 and I-907 will transition from service centers to the USCIS lockbox. This move aims to reduce costs while maintaining a more streamlined and standardized approach to handling H-1B petitions. With these customer experience improvements, USCIS is taking a significant stride towards modernizing and streamlining the H-1B petition process. As we approach the FY 2025 H-1B registration period, Santos Lloyd Law Firm is closely monitoring the evolving landscape of H-1B changes and actively engaging in upcoming sessions to maximize the benefits of these improvements.

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The Laken Riley Act: A New Era of State Involvement in Federal Immigration Policy

By Kris Quadros-Ragar • February 6, 2025

On January 29, 2025, President Trump signed the Laken Riley Act into law, significantly altering how immigration policies are enforced in the United States. This legislation grants State attorneys general and other authorized officials unprecedented authority to interpret and implement federal immigration policies. It also empowers them to take legal action against the federal government if they believe federal immigration enforcement negatively impacts their state. With this new authority, states now play a direct role in shaping immigration outcomes—a responsibility traditionally held by the federal government. One of the most immediate effects of the Laken Riley Act is that it allows states to seek injunctive relief to block the issuance of visas to nationals of countries that refuse or unreasonably delay the acceptance of their citizens who have been ordered removed from the United States . This means that if a country does not cooperate with U.S. deportation efforts, its nationals—regardless of their legal status—could face significant difficulties obtaining or renewing visas. As a result, foreign nationals from these countries may encounter increased uncertainty when traveling internationally or securing work authorization in the U.S. Beyond visa processing, the law introduces a new level of unpredictability into the immigration system. By allowing state attorneys general to intervene in federal procedures, and immigration policies that may now vary based on state-level decisions. In the coming months, it remains to be seen how individual states will wield this power—whether they will actively seek to block visa issuance or push for broader immigration enforcement measures. For foreign nationals and employers, staying informed about which countries are deemed “uncooperative” is now more important than ever. Those needing visa renewals or planning international travel should prepare for potential delays and seek professional guidance to navigate these uncertainties. The Laken Riley Act also mandates federal immigration authorities to detain and deport individuals without legal status who are charged with certain offenses, including minor theft or shoplifting, assaulting a law enforcement officer, and crimes resulting in death or serious bodily injury. This provision underscores a stricter approach to immigration enforcement, affecting individuals accused of both minor and serious offenses. With immigration policies now subject to a new layer of state involvement, it is more important than ever to stay informed and prepared for potential challenges. If you have concerns about how the Laken Riley Act may affect your immigration status or business, contact Santos Lloyd Law Firm for strategic counsel tailored to your needs.

Understanding the January 28, 2025, Vacatur Memo on Venezuela TPS

By Angelica Rice • January 31, 2025

On January 28, 2025, Secretary of Homeland Security Kristi Noem vacated the January 10, 2025, decision by former Secretary Alejandro Mayorkas that had extended the 2023 designation of Temporary Protected Status (TPS) for Venezuela and ordered that his January 17, 2025, notice re-designating Venezuela TPS be vacated. This action has understandably caused confusion and concern among Venezuelan TPS beneficiaries and those with pending applications. It is critical to clarify that this does not mean that the TPS program for Venezuela has been eliminated . Instead, the Department of Homeland Security (DHS) must now reconsider whether to re-designate (extend) or terminate the previous Venezuela TPS designations from 2021 and 2023. What Does the Vacatur Mean? Because the January 17, 2025, TPS extension was vacated, the most recent valid TPS designation for Venezuela remains the October 3, 2023, designation . The vacatur does not immediately affect TPS protections for individuals covered under the prior designations. However, DHS must make key decisions in the coming months: By February 1, 2025 , DHS must decide whether to extend or terminate the October 3, 2023, designation . By July 12, 2025 , DHS must decide whether to extend or terminate the March 9, 2021, designation . If the Secretary does not make a timely determination (for example, if the Secretary were not to make determination by February 1, 2025 whether to extend or terminate the 2023 Venezuela TPS designation), then the statute provides for an automatic extension of the designation for an additional period of 6 months . INA 244(b)(3)(C), 8 U.S.C. 1254a(b)(3)(C). Until these decisions are made, TPS remains in effect under the previous designations , and those who have already been granted TPS are not immediately impacted. Who Is Affected and What Should You Do? Current TPS Holders If you were already granted TPS under the March 9, 2021, or October 3, 2023, designations, your status remains valid. You must continue to comply with all re-registration requirements to maintain your protection and work authorization. Re-registration period: TPS beneficiaries under the 2021 and 2023 designations must re-register between January 17, 2025, and September 10, 2025 , to maintain their legal status and work authorization. Individuals with Pending TPS Applications as of January 17, 2025 If you applied for TPS before January 17, 2025 , under a previous designation, your application will continue to be processed . If your application is approved, your TPS protection will remain valid at least until April 2, 2025 . There is no need to reapply. Individuals Who Applied for TPS Between January 10, 2025, and January 28, 2025 If you applied for TPS during this period, USCIS will cease processing your applications and issue refunds of any fees paid in association with those applications . Additionally, USCIS will invalidate EADs; Forms 1-797, Notice of Action (Approval Notice); and Forms 1-94, Arrival/Departure Record (collectively known as TPS-related documentation) that have been issued with October 2, 2026 expiration dates under the January 17, 2025 Mayorkas Notice. What Happens Next? Given the Biden administration’s prior support for TPS, many expect DHS to extend or re-designate Venezuela for TPS rather than terminate it . However, no final decision has been made , and Venezuelan nationals with TPS or pending applications should continue to follow updates closely. What Should You Do Now? If you currently hold TPS , continue to comply with all TPS renewal requirements and remain aware of DHS’s upcoming decisions. If you have a pending application , check USCIS updates regularly and consult with an immigration attorney for the latest guidance. If you applied between January 17, 2025, and January 28, 2025 , seek legal counsel to understand how the vacatur may affect your application. Stay Informed and Get Legal Guidance Our immigration firm is closely following these developments and will provide updates as soon as DHS makes its decision. If you have questions about your TPS status or how this memo affects your case, contact our office today for a consultation. For more information, refer to the official DHS notice on the vacatur: Vacatur of 2025 Temporary Protected Status Decision for Venezuela .

U.S. Birthright Citizenship: The new Trump Order and its Legal Challenges

By Angelica Rice • January 23, 2025

On January 20, 2025, President Donald Trump signed an executive order titled "Protecting the Meaning and Value of American Citizenship," which aims to end birthright citizenship for certain children born in the United States . This order specifically targets children born to mothers who are either unlawfully present or temporarily in the U.S. on visas, such as student, work, or tourist visas, if the father is neither a U.S. citizen nor a lawful permanent resident. Under this new policy, these children will no longer be granted automatic U.S. citizenship. The order is set to take effect 30 days from its signing and applies only to births occurring after that period, meaning it does not retroactively affect children born before the effective date. This executive order challenges the long-standing interpretation of the 14th Amendment of the U.S. Constitution, which guarantees citizenship to all individuals born on American soil . The amendment states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." For over a century, this provision has been understood to grant citizenship to most individuals born in the U.S., regardless of their parents' immigration status. In response to the executive order, immigrant rights advocacy groups, including the American Civil Liberties Union (ACLU), have filed lawsuits challenging its constitutionality . They argue that the order violates the clear mandate of the 14th Amendment and undermines fundamental American values. Legal experts anticipate that this issue will be contested in courts, with the potential for the order to be blocked or overturned. On January 23, 2025, a federal judge in Seattle issued a temporary restraining order (TRO), effectively blocking the executive order from taking effect for the next 14 days . The court cited potential constitutional violations and the need for further legal briefings before any enforcement could proceed. This ruling provides temporary relief to affected families and signals the likelihood of a prolonged legal battle. Further hearings are scheduled to determine whether the order will be permanently blocked or allowed to proceed. For families affected by this order, there is growing concern about the potential challenges their children may face without U.S. citizenship. Access to essential services, education, and employment opportunities could become more difficult for those impacted. However, it is important to remain hopeful, as the legal system provides checks and balances to ensure that any executive action aligns with constitutional principles. Historically, similar attempts to restrict birthright citizenship have faced significant legal challenges and have not been upheld . If you or someone you know may be impacted by this executive order, staying informed and understanding your rights is crucial. At Santos Lloyd Law Firm, P.C., our trusted immigration attorneys are available to provide guidance and support during this uncertain time, please contact us if you need assistance.