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It's Not Too Late! Developing a Backup Plan for Your Foreign Workers

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As H-1B cap subject petition receipt notices begin to trickle in, and employers are being notified as to whether their foreign employees will obtain an H-1B visa this cap season, it is a necessity to think about other viable options to continue to maintain and even grow your international workforce.

U.S. Citizenship and Immigration Services announced that it had received 201,011 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. USCIS received approximately 10,000 more H-1B cap subject petitions this year than last, and the obvious demand for H-1B visas remain. Each fiscal year, 65,000 H-1B visas are available with an additional 20,000 H-1B visas available for individuals holding a master's degree or higher from a U.S. university.

In light of this, employers are strongly encouraged to analyze alternate visa options in the event their employees are not selected for the H-1B cap this year.

  • 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 in order to continue to remain in the U.S.
     
  • 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 organizations, governmental research institutions, and workers employed "at" such entities (even if not "by" such entities) if the worker spends a majority of their 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.

Even those employers with workers selected for H-1B cap subject processing should remain open to considering alternate visa options as well. The current administration has tightened the reins on U.S. immigration, and enhanced review and scrutiny of H-1B petitions has led to a tremendous spike in Requests for Evidence and even denials. Employers continue to face increasing hurdles when petitioning for foreign employees and must dedicate more time and resources to respond to detailed requests for evidence and seek alternative and creative immigration options for those foreign nationals whose petitions are denied.

For additional information regarding immigration issues, please contact the author, Dilnaz Saleem, or any member of Baker Donelson's Labor & Employment Group.

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