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Immigration Update: Didn't Make the H-1B Cap? Options for Developing a Plan B


Most employers and H-1B applicants have been notified by USCIS as to whether their H-1B cap petition was selected for processing. Now is the time for employers to work with their foreign national employees to determine if there are any alternate visa options available for those who were not selected for an H-1B visa this year. In light of the limited number of H-1B visas available and the high demand for an international workforce, employers must look to creative options that will allow them to continue to employ their foreign workers without disruption.

  • An F-1 student who is still in status and has no other options might consider pursuing another level of study in F-1 status.
  • Students working under the Optional Practical Training (OPT) in science, technology, engineering and mathematics (STEM) fields are eligible for an extended (now 24-month) period of OPT. The longer period of STEM OPT will allow some former students another chance to be sponsored for "capped" H-1B employment next year, but it comes with increased reporting, training, and monitoring obligations for the employer and student.
  • L-1A or L-1B status may be available for individuals who have qualifying experience in a specialized knowledge or managerial position with a related entity. Employers could pursue a strategy in transferring an employee abroad for one year and then back to the U.S. as a multinational business transferee.
  • H-4 dependent spouses of H-1B workers may be eligible for work authorization if the H-1B spouse is the principal beneficiary of an approved I-140 immigrant petition or is in H-1B status beyond the normal six-year maximum under the "AC21" law.
  • Canadian or Mexican nationals may be able to pursue TN, or non-immigrant, classification.
  • Australians can pursue E-3 classification for specialized occupations requiring a bachelor's degree.
  • The E visa often allows companies to manage global mobility and meet hiring needs. The E-1 and E-2 categories are comprised of treaty traders and treaty investors entitled to be in the U.S. under a bilateral treaty of commerce and navigation between the U.S. and the country of which the investor/trader is a citizen or national. In essence, these visa options allow for foreign organizations which maintain subsidiaries in the U.S., of which the foreign organization owns more than 50 percent, to sponsor essential workers, specialized skills workers, and professional employees in the U.S.
  • The B-1 in lieu of H-1B visa is an often-overlooked option for international talent transfers to the U.S. on a short-term basis. The B-1 visa category traditionally permits foreign individuals to enter the U.S. for temporary, business-related activities. B-1 business visitors may not engage in productive work while in the U.S. A hybrid visa called the "B-1 in lieu of H-1B" recognizes that in some situations an individual who would otherwise qualify for an H-1B may more appropriately be classified as a B-1 visa applicant when the applicant is coming to the U.S. temporarily to perform professional duties related to their overseas employment, will not enter the U.S. labor market, and will remain on their overseas payroll.
  • Concurrent or Cap Exempt employment may be permitted in very specific circumstances. Some employers are not subject to the limitations of the FY Cap – these can include Colleges or Universities, non-profit entities "affiliated or related" to a university, non-profit research organization, governmental research institutions, and workers employed "at" such entities (even if not "by" such entities) if the worker spends majority of work time performing duties that directly further the purpose/objectives of the cap-exempt organization. As long as an employee does not "cease to be employed" with the cap-exempt employer, he or she can concurrently work for an employer who would otherwise be subject to the cap. The cap-subject employer would be required to file a separate H-1B petition and provide evidence of the ongoing concurrent cap-exempt employment, but this can be a feasible option for individuals who can find cap-exempt employment.

Baker Donelson specializes in developing customized strategies for U.S. employers. If you are interested in discussing these options or other alternatives to the H-1B, please contact the author, Dilnaz Saleem, or any member of Baker Donelson's Immigration Group.

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