As an employer seeking to utilize a global workforce, sponsoring foreign nationals for the H-1B nonimmigrant visa is likely high on your list for recruiting international talent and bringing them to work for your business in the US. However, you are not the only employer sponsoring H-1B employees, and there is a strict cap limiting how many applications US Citizenship and Immigration Services (USCIS) will accept every year—currently set at 65,000.
As US jobs continue to grow, so too are the number of H-1B visa applications, meaning you can certainly expect that the cap will be met quickly each year, and when it is, USCIS will not accept any more applications until the following fiscal year.
So what can an employer do when the H-1B cap has been met but they need to bring employees to the US quickly without waiting months for USCIS to accept applications once again?
Fortunately, there are a significant number of alternatives your company may be able to utilize. Not every alternative will work for every situation, but there are generally other options you can pursue to fulfill your hiring needs.
We’ve detailed a few of the most common alternatives to the H-1B below:
B-1 in lieu of H-1B – The B-1 temporary business visitor visa can be used in lieu of the H-1B visa in situations where the employee’s remuneration will only come from an overseas source with which your company is affiliated in some way. Additionally, the nature of their work must be temporary and their intended duration for their stay must be for a very specific, limited period of time. To learn more about the B-1 in lieu of H-1B, check out our previous blog on the subject.
TN – Citizens of Mexico and Canada may be able to utilize the TN visa if H-1Bs have reached their cap for the year. “TN” stands for “Treaty NAFTA,” and the program allows professionals in specific industries such as accountants, attorneys, scientists, and engineers to temporarily enter the US and work for your business. The TN program is relatively easy to qualify for, and employees may remain in the US working for your company for a period of 3 years at first with potential extension of 3 years to follow.
E-3 – The E-3 visa is to Australian citizens what the TN program is to Canadian and Mexican citizens. If the H-1B cap has been reached and you are seeking to hire employees from Australia, you may be able to utilize the E-3 visa instead.
Work visas for specific situations – There is a wide variety of other types of work visas which employers can utilize that are meant for very specific professions and situations. For example, the O visa could be used to hire an employee of extraordinary ability, or the R-1 visa could be used to hire religious workers. There are many work visas that are unique to specific circumstances, so consult with a business immigration attorney to learn which ones you might be able to use if the H-1B cap has been met.
H-1B cap exempt employees – There are a number of situations in which an employee you are seeking to hire is exempt from the current fiscal year’s H-1B cap. For example, you could hire an employee who is currently living in a foreign country but has counted towards the H-1B cap in the previous six years. This is particularly simple if their previous H-1B visa is still valid. Additionally, there is a separate cap of 20,000 H-1B visas for foreign-national students holding US Master’s degrees or higher.
Trainee programs – These programs allow you to bring employees to the US to receive training that they otherwise could not have received in their country of origin. While not ideal, they could help you fulfill your company’s needs if the H-1B and other work visa options have reached their cap or are otherwise unavailable. The most popular of these programs are the H-3 and the J-1 trainee programs. To learn more about each, check out our previous blog on the subject.
If your company is seeking to hire foreign talent, and you need help sponsoring an H-1B employee or finding creative alternatives to the H-1B due to cap limits, be sure to contact FordMurray Law today and let us help with all your business immigration needs.