Most “new” H-1B petitions must be counted against an annual H-1B cap. This limit, or “cap,” administered by the U.S. Citizenship and Immigration Services (USCIS), is currently set at 65,000 plus an additional 20,000 reserved for those who hold an advanced degree from a U.S. college or university. Those petitions selected under the cap will have an October 1st start date in H-1B nonimmigrant status.

In a trend that is escalating, the need for H-1B nonimmigrant workers in the United States has grown in the last several years, but this growth has come without a corresponding increase in actual visa numbers available. We have seen approximately 50,000 additional H-1B cap petitions being filed each fiscal year (FY) for the last three years:

FY 2016: 233,000 H-1B petitions received

FY 2015: 172,500 H-1B petitions received

FY 2014: 124,000 H-1B petitions received

The rapidly increasing demand for H-1B visas combined with a static supply means that with each passing year the odds of any particular petition being selected to receive a visa become commensurately lower. The FY 2016 H-1B cap season started on April 1, 2015—the earliest possible filing date for each FY H-1B cap petition—and closed on April 7, 2015. During these five business days, 233,000 H-1B cap petitions were filed with USCIS. This total is unprecedented and resulted in approximately a one in three chance of an H-1B cap petition being selected for processing and adjudication.

The dilemma for employers arises when an H-1B cap petition is not selected, but the employer still needs the foreign employee to continue working lawfully for the company in the United States. To achieve this, the foreign employee will require work authorization through some other means. Fortunately, there are a variety of options, but there are several factors to consider when reviewing which work authorization option may be best for a foreign worker.

One option for foreign employees who are working pursuant to an Optional Practical Training (OPT) Employment Authorization Document (EAD) includes a possible 17-month work authorization extension through STEM (Science, Technology, Engineering, and Math). This option is possible if (1) an employer has enrolled in the E-Verify program, (2) the OPT EAD employee works at a location where employees are verified as part of the E-Verify program, and (3) the employee has a STEM degree. If these facts all apply to the employer and foreign worker, then the employee should be able to benefit from a 17-month extension of work authorization.

Another factor that employers must consider is the employee’s country of citizenship as there are several visa categories set aside for citizens of specific countries. For example, if the employee is a citizen of Singapore or Chile, the employer should be able to pursue H-1B1 nonimmigrant status for these foreign workers under the terms of legislation implementing the U.S.-Chile and U.S.-Singapore free trade agreements. That legislation sets aside up to 6,800 visas from the H-1B cap. If the foreign worker is Australian, an E-3 visa may be another option for ongoing work authorization. The H-1B1 and E-3 nonimmigrant categories are similar to H-1B nonimmigrant status.

If the foreign worker is a Canadian or Mexican citizen, the employer may be eligible to pursue TN nonimmigrant status. TN nonimmigrant status requires the employee to work in a TN professional position. These TN professional positions are limited to those acknowledged by the North American Free Trade Agreement (NAFTA) provisions.

There is also the potential for an employer to pursue work authorization under the O-1 nonimmigrant visa category. This particular visa category may be an option for those employees who have extraordinary ability and recognition in their area of expertise. Areas of expertise vary from arts and motion pictures to science and business. If an employer has an employee who is outstanding, then the O-1 nonimmigrant visa category should be a good fit.

In addition, when a company is a multinational organization, an employer could assign the foreign employee to work for a foreign affiliate for at least one continuous year such that an L-1 intracompany transferee nonimmigrant visa would become an option down the road. The L-1 nonimmigrant visa option is available to foreign employees who have worked for a foreign affiliate for at least one continuous year in the preceding three years in a specialized knowledge, managerial, or executive capacity position and who will enter the United States to work in a specialized knowledge, managerial, or executive capacity position. Pursuing this potential alternative to an H-1B cap petition would require additional coordination within the company.

If an employer’s H-1B petition is not selected under the cap, there are still several options that the employer can pursue to retain its skilled foreign national employees and keep its projects on track.


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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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