Should Companies Enter Their L-1A Visa Holder in the H-1B Lottery?

June 21, 2017

Many multinational companies are interested in pursuing green cards for their foreign workers, a process that can take anywhere between a few months and a few years. Companies who have numerous foreign workers present in the U.S. on L-1A visas may find themselves conflicted on whether to enter a foreign worker in the H-1B lottery as a strategic step on the way to the green card.

While both the L-1A and H-1B are temporary visas, it may benefit U.S. companies to enter foreign workers in the H-1B lottery as a way to protect foreign workers’ positions in the U.S. temporarily while the green card is underway. This may seem counterintuitive because the H-1B visa on its face only allows the foreign worker to be present in the U.S. for six years instead of seven (which is how many the L-1A visa allows). However, it is a best practice to enter the L-1A foreign worker in the H-1B lottery if the U.S. company knows that it wants to sponsor her for a green card sometime in the future or if the U.S. company decides during the last three years of her visa that it wants to sponsor the L-1A foreign worker.

The L-1A visa applies to a foreign worker employed by a company abroad in an executive, managerial, or specialized knowledge position who is being transferred to the company’s affiliated U.S. office as a manger or executive. To obtain an L-1A visa, a foreign worker must have been employed for a foreign affiliate for at least one year within the three years prior to coming to the U.S. An L-1A visa allows the foreign worker to remain in the U.S. for seven years. As well, a spouse of an L-1A visa holder may file for work authorization.

The H-1B visa applies to a foreign worker with a job offer from a U.S. company for a position that is considered a “specialty occupation”, meaning that the position requires and the foreign worker holds a bachelor’s degree or the equivalent experience in a specialized field. The U.S. company must be willing to sponsor the foreign worker for the position in the lottery at the beginning of April. An H-1B visa allows the foreign worker to remain in the U.S. for six years. A spouse of an H-1B holder may not file for work authorization unless the H-1B holder spouse has an approved I-140 petition.

Once a U.S. company has decided to sponsor a foreign worker who holds an L-1A visa for an employment-based green card, the company should look at what category is best for filing the green card, what country the foreign worker was born in, and how much time the foreign worker has left on her L-1A visa. If the foreign worker was born in China, El Salvador, Guatemala, Honduras, India, Mexico or the Philippines, filing for the green card could be delayed by additional months or years. This is especially true if the foreign worker was born in India. The exact delays based on country of birth can be found in the Visa Bulletin, which is published monthly online by the U.S. Department of State. The U.S. company should consider how long the foreign worker has remaining on her current visa and determine whether it is likely that she will have her green card by the time the she has reached her seven year maximum on the L-1A visa.

There are benefits and detriments to converting a foreign worker from an L-1A visa to an H-1B visa. Once an L-1A visa holder reaches her seven year maximum, there is no additional provision that allows her to stay while her green card is pending. If the U.S. company, however, sponsors her in the H-1B lottery in April in order to convert her status and she is selected in the lottery, she may extend her H-1B status in three year increments throughout her green card process as long as she holds an approved I-140. An I-140 immigrant petition is one of the steps in the green card process, and it essentially becomes a safety net for H-1B visa holders who want to remain working in the U.S. throughout their green card process. Because there is only a one in three chance of being selected in the H-1B lottery, U.S. companies should enter their foreign workers in the lottery multiple times before their L-1A visas expire in order to give the foreign workers multiple chances at being selected. Foreign workers should discuss with their employers, as well, their desire to be entered into the H-1B lottery because H-1B spouses may not apply for work authorization unless their H-1B spouse holds an approved I-140. This may result in the spouse having a gap in employment.

With these considerations in mind, it is a best practice to enter the L-1A foreign worker in the H-1B lottery if the U.S. company knows that it wants to sponsor her for a green card sometime in the future. Furthermore, if the U.S. company decides during the last three years of her visa that it wants to sponsor the L-1A foreign worker, it is a best practice to enter her into the H-1B lottery every year possible. Although there is an increase in legal fees and filing fees, this conversion from L-1A to H-1B offers U.S. companies a safety net for valuable executive and managerial foreign workers, thereby increasing workforce retention and decreasing turnover.

Example A: LUXEM Corp., a multinational finance company with offices in the U.S., Bermuda, Ireland, and Argentina, wants to sponsor a foreign worker, Morrigan, for a green card. She is present in the U.S. on an L-1A visa and has two years until her visa expires. She was born in Ireland. The company decides to pursue the EB-1 category route for her green card. Because Morrigan was born in Ireland, she is not subject to any of the additional delays for filing for her green card. The U.S. company believes that it can procure an approved I-140 for Morrigan in seven months and a green card for Morrigan in twelve to fourteen months. Because the company has decided to pursue a green card for Morrigan only two years before her visa expires, the U.S. company should enter Morrigan in the H-1B lottery each year.

Example B: INFOTRIBE Inc., a multinational software development company with offices in the U.S., India, Japan, and Mexico, wants to sponsor a foreign worker, Ganesh, for a green card. He is present in the U.S. on an L-1A visa and has four years until his visa expires. He was born in India. The company decides to pursue the EB-2 category for his green card. Because Ganesh was born in India, he is subject to an eight year additional delay in filing for his green card. The U.S. company believes that it can procure an approved I-140 for Ganesh in eighteen to twenty-four months. Because there is a long wait for Ganesh to file for his green card, the U.S. company should enter Ganesh in the H-1B lottery every year until he is selected while also pursuing an approved I-140 for Ganesh.

Example C: Driotte Corp., a nuclear engineering firm with offices in the U.S., Russia, South Korea, and Turkey, wants to sponsor a foreign worker, Jin Soo, for a green card. He is present in the U.S. on an L-1A visa and has three years until his visa expires. He was born in South Korea. The company decides to pursue the EB-1 category for his green card. Because Jin Soo was born in South Korea, he is not subject to any of the additional delays for filing for his green card. The U.S. company believes that it can procure an approved I-140 for Jin Soo in seven months and a green card for Jin Soo in twelve to fourteen months. Jin Soo, however, says that it is very important that his wife remain able to work during the green card process. The U.S. company and Jin Soo have decided that if Jin Soo and his family do not have their green cards in the next fourteen months, the U.S. company will enter Jin Soo into the H-1B lottery at that time. Although it is not the safest choice, it is what both the U.S. company and the foreign worker have decided on together based on their specific interests.