H-1B Cap Has Been Reached: Other Options?

The H-1B cap was reached on June 11, 2012 for both the regular cap of 65,000 H-1B visas and the 20,000 cap, segregated for those who earned a US Masters Degree or higher. The cap was reached more than 5 months earlier than the previous fiscal year, which indicates the economy is stronger this year. However, it is terrible news for those foreign national professionals who cannot get a work visa to perform as an employee for US employers NOW. The fact that we have reached the cap every year during the most devastating recession since the Great Depression should indicate that the cap limit is clearly “out of whack” with what our economy demands in terms of foreign workers. It takes an act of Congress to increase the cap, which has no interest in doing so at this time. In the mean time, those subject to the H-1B cap are forced to look at alternative options, if any, to stay or work in the US until new visa numbers become available April 1, 2013 and until they can begin working on an H-1B on October 1, 2013 – 15 months from now.

What are the options? There are some. First, you may be still eligible for an H-1B if your organization fits  under the definition of “cap exempt.” This means the US organization is an institution of higher education, a non-profit organization related to or affiliated with an institution of higher education, a non-profit research organization, or  a governmental research organization.  Many hosptials, clinics, and research institutions may fit into this category. 

Second, a reminder that professionals from certain countries like Canada or Mexico may qualify under the Treaty Nafta or TN visa. There is a very specific list of professionals who qualify, but nevertheless, it may be an option available. Australian nationals also can take advantage of the E-3 visa, which is similar to an H-1B visa but just for Australian nationals and is not related to the H-1B caps.

Third, other visas that involve training may be applicable such as a J-1 visitor exchange visas  for interns and trainees, or an H-3 trainee, or even if the foreign national goes to school in the US for the interim period to gain additional education or training and can obtain an F-1 visa. 

If the foreign worker is entrepreneurial and has some cash or access to capital, he or she may want to investigate the E-2 investor visa as an option, allowing them to set up their own shop and work possibly for a US employer, in a consulting capacity for instance.

If the US organization has any affiliated organizations abroad, another option is to have the foreign worker work for the US organization abroad for at least 1 year full time, and then the foreign national may be eligible to transfer to the US organization later on an L-1 visa as a manager, executive or specialized worker.  

If your employer is extraordinary he or she may be eligible for an O-1 visa, or if the US company has any seasonal aspect to the business or has a one time need, the individual may be eligible for an H-2B seasonal work visa.

It is an extremely frustrating situation for the H-1B cap to be reached and no more H-1B visas available for the next 15 months. This is especially true in the IT and medical/science industries who rely on educated foreign workers to fill much-needed positions. For further discussion of the options listed above in lieu of obtaing an H-1B visa, you should call Denver immigration attorney Catherine Brown, for legal advice.

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