Under the current law, only 85,000 H1B visas are available each year. USCIS stops accepting H1B petitions as soon as it receives a sufficient number of applications to reach that year’s cap.
While filing as soon as the quota opens is a potential immigration strategy to survive the H1B Cap, it is not always practical since the cap has been reaching on Day One.
What Can You Do After H1B Cap Has Reached?
A. Hire H1B Cap Exempt Candidates, or Students on F-1 OPT
B. Use Alternative To H1B Visa
A. Hiring H1B Cap Exempt Candidates, and Students on F-1 OPT
1. Hire H1B Candidates Currently In The U.S.
Professionals who are already in H1B status and inside the U.S. with another employer can be hired without being subject to the annual cap.
DID YOU KNOW?
1. In the case of an H1B employee transferring from one employer to another, the H1B employee does not have to wait for the approval of the transfer petition to start employment with the new employer.
2. The candidate may start working with the transferee company as soon as the petition is filed with the USCIS.
2. Hire Candidates Outside The U.S. Who Were Previously Counted Against H1B Cap
Even after the H1B Cap is reached employers may continue to file H1B petitions on behalf of foreign nationals who are currently outside the U.S. if they have held H1B during the past six years and have not exhausted the full six years.
Further, if the candidate still has a valid H1B visa in their passport, he or she may be able to travel to the US immediately after the H1B petition is approved, without having to apply for a new H1B visa.
QUESTIONS TO ASK YOURSELF
- Did the candidate receive H1B approval during the past 6 years?
- Was the candidate counted against the H1B Cap in the past 6 years?
- Does the candidate have time remaining on the six years to recapture?
- Does the candidate have a valid H1B visa stamped in his/her passport?
3. Hire Students On F-1 OPT
Employers can employ foreign students in the U.S. as part of their Optional or Curricular Training Program.
Generally foreign students in Bachelors and Master’s degree programs are allowed one year of full-time off-campus work on F1 OPT.
Further, F-1 students who have completed a qualifying Science, Technology, Engineering or Mathematics (STEM) degree, are eligible to apply for additional 17-months STEM extension, for a total period of 27 months on OPT.
If the cap has reached before the employer can file an H1B petition on the behalf of these STEM students, they can avail the 17-month STEM extension of their post completion OPT, allowing them to remain and work in the US until the filing of the next H1B Cap petitions.
B. Using Alternatives To H1B Visa
1. L-1 Visa
Organizations in the U.S. with a related entity abroad (parent, subsidiary, branch or affiliate) may transfer managers, executives and those with specialized knowledge to work for the U.S. entity on an L-1 visa.
To be eligible, the employee must have worked for the foreign entity for at least one continuous year during the last three years of employment.
DID YOU KNOW?
1. Unlike the spouse of an H1B visa holder, a spouse of an L-1 visa holder may take up employment in the U.S. after applying for and obtaining work authorization from USCIS.
2. If approved, there is no specific restriction as to where the L-2 spouse may work.
2. H-2B Visa
Personnel who are needed in the U.S. for a temporary, seasonal or a one-time employment may consider using H-2B visa.
It is generally available for jobs lasting less than one year.
H-2B petitions may only be approved for nationals of countries that are designated as being eligible to participate in the H-2B program. The Department of Homeland Security publishes the list of H-2B eligible countries annually.
3. H-3 Visa
The H-3 visa category allows foreign nationals to enter the U.S. to receive training.
The employer must demonstrate that the training is not available in the foreign national’s home country and the training will benefit the foreign national in pursuing a career outside the U.S.
DID YOU KNOW?
1. H-3 trainees may be allowed to remain in the United States for up to 2 years.
2. Spouse and children under the age of 21 of an H-3 trainee may accompany the trainee to the United States under H-4 visas.
4. J-1 Visa
The J-1 trainee visa is also a good option for those employees who are not experienced and who wish to be in the U.S. to gain knowledge on a client product or the prospective employer’s products.
Before using J-1 visa as an alternative, employers should investigate whether the two-year home country residency rule will apply to the specific scenario.
DID YOU KNOW?
1. The Spouse and unmarried children under the age of 21 of a J-1 visa holder may come and live in the U.S. on J-2 visas.
2. Dependents of a J-1 visa holder may also work in the U.S. if they receive special permission from the USCIS and can confirm that employment is not needed to support the principal J-1 visa holder.
5. B-1 Visa
The B-1 visa category can be used in cases where the foreign national is required in the U.S. for project discussions and analysis or any other work which is permissible as a ‘business activity’, so long as the foreign national is not paid any remuneration or salary in the U.S.
U.S. immigration law strictly restricts B-1 visa holders from working in the U.S.
B-1 holders are also not allowed to begin any program of study.
6. O-1 Visa
The O-1 visa category is for extraordinary people who are the “best” in their field.
It can be used for artists, entertainers, athletes, scientists, researchers and business people.
DID YOU KNOW?
Persons providing essential services in support of O-1 nonimmigrants are eligible to seek O-2 visas to come and work in the U.S.
VisaPro specializes in developing customized strategies after H1B Cap is reached. This will help employers hire foreign nationals all year-round.
We have successfully handled H1B alternatives for a variety of clients ranging from startup companies to multinationals, from software developers to accountants, clinical researchers, business analysts, physical therapists, teachers, pharmacists, engineers etc.
Contact VisaPro Law Firm today for a FREE H1B Alternatives Consultation. We’ll talk through your priorities and recommend strategies based on our attorneys’ near 100% success rate.
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