Now That The H-1B Cap Is Full

It comes as no surprise that the U.S.’s H-1B cap is full, once again, in the first week. A lottery will now take place, and the odds of being chosen are likely less than 50%. Let’s say your an employer or employee, and you don’t get one of those lottery spots. Here are a few alternatives that can be considered.

-Some employers are “cap exempt”. These include institutions of higher education as defined by the Higher Education Act of 1965; entities affiliated or related to such institutions; or a non-profit research organization or governmental organization. If an employer qualifies under one of these exemptions, they can apply for H-1Bs throughout the year.

-Canadians and Mexicans may be eligible to work as a TN NAFTA worker if their occupation listed on the NAFTA schedule. Many science professionals are listed on this schedule (e.g. Biologists, Chemists, Biochemists).

-Recent STEM graduates from U.S. universities may be able to extend Optional Practical Training an extra year.

-Some employers may want to pursue or offer to pursue permanent residence for applicants. Initial adjudications of labor certifications are taking 5 to 6 months right now. If approved, an I-140 Petition for Alien Worker can be submitted via premium processing and be initially adjudicated in 15 calendar days. If an immigrant visa is immediately available, permanent residence then could be pursued via consular processing or in some cases adjustment of status.

-Aliens of extraordinary ability may wish to file an O visa petition, or even a permanent residence application. The agency may require much in the way of evidence. Self-petitioning is available.

-Certain spouses of H-1B holders who are in pursuit of permanent residence will be able to apply for work authorization beginning May 26th.

-Intracompany transfer statuses (L and EB-1) are available for persons who’ve worked in qualifying positions in organizations abroad.

-Persons from some countries may wish to look into E-1 Treaty Trader and E-2 Treaty Investor opportunities.

There are other strategies as well, but I wanted to provide a brief list of some of the common answers to “What next?” for those seeking immigration answers. One additional answer for “What next?” is businesses and stakeholders need to let Congress know that the current H-1B program is not addressing their needs.