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After the H-1B Cap: What now?

By: Angelita Chavez | May 07, 2018

By: Sonia Sidhu

Now that the H-1B cap is reached, employers need to be innovative and rely on other available work visas to meet your hiring goals. So, what other options are available to you as employer?

Candidates Currently in the US; Candidates Previously Counted Against the Cap

Foreign nationals who are already in H-1B status and inside the U.S. with another employer can be hired without being subject to the annual cap.

Employers may also continue to file H-1B petitions on behalf of foreign nationals who are currently outside the U.S. if they have previously held H-1B status and have not exhausted the six-year maximum period in H-1B status. Under the DHS Final Rule on “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” which took effect on January 17, 2017, H-1B beneficiaries are permitted to recapture time spent outside the U.S. during the validity of an H-1B petition. Such periods may be recaptured at any time before the beneficiary uses the full 6 years [8 CFR §214.2(h)(13)(iii)(C)].

Also, many educational institutions, non-profit and research organizations are exempt from the H-1B cap. These organizations can file H-1B applications at any time.

L-1 Visa

Employers in the US with a related entity abroad (parent, subsidiary, branch or affiliate) may transfer managers, executives (L-1A) and those with specialized knowledge (L-1B) to work for the U.S. entity on an L-1 visa. To be eligible, the foreign national must have worked for the foreign entity for at least one continuous year during the last three years prior to his application for admission to the US.

Qualified foreign nationals entering the US to establish a new office will be allowed a maximum initial stay of one year.  All other qualified foreign nationals will be allowed a maximum initial stay of three years.  For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years. For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

O-1 Extraordinary Ability Visa

Certain foreign nationals may be eligible for an O-1 nonimmigrant visa. The O-1, while not limited to those with advanced degrees, does require a showing that the foreign national has attained a high level of achievement and recognition for excellence in his or her field - therefore the chances of success improve with the length of the individual's career and achievements.

To qualify for an O-1 visa, the foreign national must show extraordinary ability by sustained national or international acclaim and must be coming temporarily to the US to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

Extraordinary ability in the field of arts means distinction.  Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

E-3 for Australian Nationals

The E-3 visa is similar in many respects to the H-1B visa. Important differences include the fact that spouses of E-3 visa holders may work in the US without restrictions; the E-3 visa is renewable indefinitely (in two-year increments); and the application process is much quicker. Australian citizens applying for an E-3 visa are not subject to the 65,000 annual visa limit for H-1B visas but are subject to a separate annual quota of 10,500.

Similar to an H-1B visa, the prospective employer of the E-3 visa holder needs an approved Labor Condition Application (LCA).

TN Visas for Canadian and Mexican Citizens

TN status is a special non-immigrant status in the US unique to citizens of Canada and Mexico who will work in the US in professional positions listed in the North America Free Trade Agreement (NAFTA).

It is similar to the H-1B visa but also has many unique features. Within the TN set of occupations, a Canadian or Mexican citizen can work for up to three years at a time. TN status may be renewed indefinitely in three-year increments. The set of occupations under TN status is a bit more limited than for the H-1B visa.

F-1 Students on Practical Training

F-1 students may not work off-campus during the first academic year, but may accept on-campus employment subject to certain conditions and restrictions.

After the first academic year, there are also various programs available for F-1 students to seek off-campus employment:

  • Curricular Practical Training (CPT)- an F-1 nonimmigrant student may begin CPT after the Designated School Official (DSO) has completed the Form I-20 endorsement page. CPT is alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school. CPT must be an integral part of an established curriculum.
  • Optional Practical Training (OPT) - OPT is temporary employment that is directly related to an F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion).
  • Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT) – Students who have earned degrees in certain science, technology, engineering and math (STEM) fields may apply for a 24-month extension of their post-completion OPT employment authorization under certain conditions.

J-1 Exchange Visitors

The J-1 exchange visitor program allows a foreign national to come to the U.S. for limited periods of time to take part in certain specific types of activities.

A J-1 can be an intern (someone still in a degree or certificate-granting program at a school outside the US or who has graduated from such a program within the last 12 months) or a trainee (someone who has graduated from degree or certificate-granting program at a school outside the US and has at least one year of experience in the same field as the program outside the U.S., or someone without such a degree but who has five years of experience outside the U.S. and is entering to obtain training in the same field).

Among the allowable activities for which a J-1 might come to the U.S. are: student, professor or research scholar, short-term scholar, non-academic specialist (a common use for those seeking J-1s

where no H-1B is available), foreign physician (often one seeking clinical training), international visitor, teacher, government visitor, camp counselor, au pair, and summer students in a travel/employment program.

The maximum length of time permitted on J-1 status depends upon which type of activity is involved.

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 U.S. and many other countries. If the employer is from a country 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.

Please contact our firm so we can help you develop these strategies and allow you to hire foreign nationals all year-round.

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