Options After the H-1B Cap Has Been Reached

The current annual cap on the H-1B category is 65,000.  On June 11, 2012, USCIS announced that the H-1B cap was reached. Therefore, H-1B cap-subject petitions were not accepted to fill the annual H-1B quota after that date.The H-1B visa can be granted for positions that qualify as a “specialty occupation”, and at a minimum require a Bachelors or higher degree or its equivalent for the position.  However, once the cap is reached, many employers cannot wait until April 1 of the following year, when new H-1B petitions can be filed under the next fiscal year’s H-1B cap.  As a result, employer’s often need alternatives to the H-1B visa.

H-1B Change of Employers 
First of all, many potential employees, who currently have H-1Bs with other companies, may be cap-exempt.  This means that they may not be subject to the annual cap and may be eligible to change employers without being counted towards the cap numbers.  Also, many educational institutions, non-profit and research organizations are exempt from the
H-1B quota. These organizations can file H-1B applications at any time.

OPT: Optional Practical Training 
Yet another option is hiring employees who can work through Optional Practical Training (OPT).  OPT is used by international students in the U.S. on an F-1 visa, who are attending an academic program at a college or a university in the United States. OPT permits a 12 month employment authorization period.  However, an additional 17 months can be obtained for OPT students who are STEM (Science, Technology, Engineering, Mathematics) graduates, if their employers participate in
E-Verify, among other conditions.   Additionally, “cap-gap” allows an OPT student with a pending H-1B for employment effective October 1, to have ongoing status and work authorization past their OPT expiration until they switch to H-1B status.

O-1 or P-1 
Another option is the O-1 or P-1 extraordinary ability visas. They are available for persons with extraordinary ability in their field of expertise, e.g. in the sciences, arts, education, business or athletics.  These visas are renewable indefinitely and may be the basis for permanent residency.

L-1 
In addition, there is the L-1 visa for intra-company transferees.  It is available for employees who have worked for a foreign affiliate, parent, or subsidiary company for at least one of the preceding three years.  The employee must either be a manager or executive, or must be an employee with “specialized knowledge”.

E-1 or E-2 
Other possibilities include the E-1 (treaty trader) or E-2 (treaty investor) visa.  These visas are granted based upon treaties of trade or commerce between the United States and many other countries. If the employer is from a nation with whom the U.S. has such a treaty, certain employees who share that same nationality, may be able to obtain an E visa, depending on their role with the U.S. company, as well as other requirements.

Other Visas 
There are also special visas for employees from certain countries, like the H-1B(1) visa for Chileans and Singaporeans, the E-3 visa for Australians and the TN visa for Canadians and Mexicans, which are not subject to the same H-1B cap.

While employers can always wait and hope for Congress to raise the H-1B cap, or wait until April 1, 2013 to file new H-1B petitions for employment to begin on October 1, 2013, speaking with a skilled immigration attorney to explore your company’s options for the hiring of new employees is always in your best interest.

ARTICLES OF INTEREST

Deferred Action Update 
As of August 15, 2012, eligible young persons who came to the United States as children, but are without lawful status, may request consideration of deferred action, for a period of two years, subject to renewal, and if granted, would then be eligible for work authorization.

H-1B Process To Become Tougher 
The DOL seeks to revise the scope of information collected on the LCA to include, among other things, the intended Beneficiary and the worksite location.

EB-5 Immigrant Investors Approval Statistics
The USCIS has released statistics showing that the approval rate for EB-5 Immigrant Investors has increased from 53% in FY2005 to 73% in the third quarter of FY2012.

I-9 Form Will Remain in Effect After August 31, 2012 Expiration Date
Until further notice, employers should continue using the Form I-9, with an expiration date of August 31, 2012, for all newly-hired employees.