There is Hope after the H-1B Cap: Alternatives to the H-1B Visa

Hannah F. Little, Esq., Partner
N.C. Board Certified Immigration Law Specialist
[email protected]

There is a statutory cap that limits the number of new H-1B petitions that may be approved in a fiscal year. The cap of H-1B visas is currently set at a total of 85,000. 20,000 of those visas are reserved for the "Master's Cap" for those foreign nationals who have obtained an advanced degree from a U.S. college or university. The filing period for Fiscal Year 2018 was April 3-7, 2017. During that time, U.S. Citizenship and Immigration Services received 199,000 H-1B petitions and used a computer-generated random selection process (commonly known as the "lottery") to select the appropriate number of petitions to meet both caps. For those petitions not randomly selected, employers and foreign national employees are often left scrambling to find other visa options. It is important to note that there is hope after the H-1B cap and that other options, while not always ideal, are available.

Employment Authorization Pursuant to F-1 Student Status

An employee may be able to leverage employment authorization based on her current F-1 status or, in the alternative, return to school to further her education and receive employment authorization in the course of her studies. An F-1 student may be eligible for the following:

  • Curricular Practical Training ("CPT"). CPT is authorized by the school's Designated School Official ("DSO") on the student's form I-20 and the position offered must be relevant to the student's degree program. Students are not limited in the amount of CPT in which they may participate; however a student who has engaged in one full year of CPT is ineligible to participate in post-completion OPT.
  • Optional Practical Training ("OPT"). OPT may be authorized in an occupation that is directly related to the student's major area of study. Generally, the total period of such authorization cannot exceed 12 months, with limited exception.
  • 24 Month Optional Practical Training ("OPT") STEM Extension. F-1 students who receive science, technology, engineering, and mathematics degrees included on the STEM Designated Degree Program List may be eligible for an additional 24 months of post-completion OPT beyond the initial 12 month period mentioned above. To qualify, the F-1 student must currently be in a valid period of OPT and the STEM employer must meet certain requirements, including, but not limited to, enrollment in E-Verify, offering an OPT opportunity that is commensurate with those of similarly situated U.S. workers, implementation of a formal training program, and completion of a training plan.

Concurrent Employment with a Cap Exempt Employer

Some employers are exempt from the H-1B cap. These employers include institutions of higher education or a related or affiliated nonprofit entity, nonprofit research organizations, and governmental research organizations. If an individual holds H-1B status pursuant to cap exempt employment, then she may accept concurrent employment with a cap subject petitioner. In other words, if an H-1B holder is concurrently employed with an exempt and nonexempt employer, then she will not be counted toward the cap. Alternatively, an H-1B employee may be employed by a cap-subject employer but employed at a qualifying cap-exempt organization, and would not be counted against the annual cap.

O-1 Visa for Extraordinary Ability

Foreign nationals who are highly talented or have reached a high level of acclaim in the sciences, arts, education, business or athletics should consider the O-1 visa. To qualify, the foreign national employee must be extraordinary in her field in terms of knowledge, ability, expertise and accomplishments and the position being offered must require the services of an extraordinary person. When pursuing the O-1 visa, the beneficiary should be prepared to demonstrate that she has sustained national or international acclaim and that her achievements have been recognized in the field through extensive documentation.

B-1 in lieu of H-1B

There is short term option for individuals who will be posted in the U.S. in a professional level position and who hold the equivalent of a U.S. bachelor's degree. The applicant must receive her salary only from her foreign employer, except reimbursement of incidental travel costs such as housing or per diem. This visa is not intended for long term placement and should be used for activity in the U.S. that is less than 6 months in duration.

Training Visas

If the position offered is more a training opportunity than productive employment, then the employer should consider a training visa.

  • H-3 Visa. To qualify, the training program must meet the following conditions: the training is not available in the applicant's own country; the applicant will not be placed in a position which is in the normal operation of the business; the applicant will not engage in productive employment; and the training will benefit the applicant in pursuing a career outside the U.S. The applicant must also be able to prove that she plans on returning to her home country, both at the time of application for the H-3 visa and admission to the United States.
  • J-1 Visa. This visa permits foreign nationals to participate in an exchange program designated by the U.S. Department of State. The applicant must be coming to the U.S. for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training. In order to receive a J-1 visa, the applicant must apply for and be accepted by an exchange visitor program designated by the U.S. Department of State. Some exchange visitors are prohibited from acquiring H, L, or permanent residence status for 2 years after participating in a J-1 program unless they obtain a waiver of that requirement from the U.S. Department of State.

Other Options?

Global employers may create visa opportunities by electing to send key employees to work for an affiliate, subsidiary, or parent company outside the U.S. for one (1) year in a specialized knowledge, managerial, or executive role. This strategy may qualify the employee for an L-1 visa and facilitate the green card process for those who qualify as Multinational Managers.

Employers should also keep in mind that certain nationalities have additional visa options available to them, including but not limited to, Australia, Canada, Mexico, Chile, and Singapore.

Stay Tuned

Identifying viable alternatives to the H-1B visa is an increasingly relevant exercise for employers as the demand for the H-1B continues to exceed the statutorily allotted numbers. On April 18, 2017, President Trump signed an executive order which ordered a multiagency report on changes needed to the H-1B which may result in an even more restrictive visa program.