• Alternatives Now That the H-1B Cap Has Been Reached
  • December 7, 2011 | Authors: Susie Kim; Mark J. Newman; Aimee Clark Todd
  • Law Firms: Troutman Sanders LLP - New York Office ; Troutman Sanders LLP - Atlanta Office
  • U.S. Citizenship and Immigration Services (USCIS) announced that, effective November 22, 2011, the H-1B cap had been reached. The cap applies only to petitions for new H-1B employment, not to H-1B extensions or an H-1B change of employer (unless the prior employer was cap-exempt). Now that the cap has been reached, H-1B petitions subject to the cap cannot be filed again until April 1, 2012, for a work start date of October 1, 2012.

    Employers who need to hire a foreign worker and would normally use the H-1B category should consider the alternative categories that are available:

    • As mentioned above, employers may file H-1B petitions for those already in H-1B status previously subject to the cap, or who held such status during the last six years (and who have not remained outside the U.S. for one year or longer).
    • H-1B petitions for certain university or college employees, including those working for related research entities, are exempt from the cap.
    • H-1B1 petitions for nationals of Singapore and Chile are subject to a separate cap, which has not been reached.
    • The H-2B category is available for certain intermittent, peak-load or seasonal work (also subject to a cap).
    • The H-3 and J-1 categories are available for those receiving training in the U.S.
    • E-1/E-2 petitions can be filed if a treaty with the person’s home country exists and the U.S. company is owned at least 50% by individuals or entities with that same nationality.
    • E-3 petitions may be filed for nationals of Australia, with similar requirements as the H- 1B category.
    • I petitions can be filed for foreign media workers (note that this is not available for regular employment of a media worker in the U.S., but only for foreign media workers temporarily in the U.S. on behalf of a foreign entity).
    • L-1 petitions can be filed for certain internal transfers from related companies abroad.
    • O petitions can be filed for individuals of extraordinary ability in their field.
    • P petitions can be filed for certain coaches, athletes, entertainers and culturally unique performers.
    • R petitions can be filed for religious workers.
    • TN petitions can be filed for nationals of Canada or Mexico working in a listed occupation.
    • The “B-1 in lieu of H-1B or H-3” category is available for individuals who will remain on foreign payroll while on a brief work trip to the U.S. This category is highly scrutinized.Individuals may wish to enroll in a U.S. school to obtain F-1 or M-1 student status and return to school while waiting for an employer to file an H-1B petition when the cap opens again next year.

    As indicated above, there are various alternatives to the H-1B category but each is very limited in its own way. For this reason, every case must be assessed on its own merits.