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After the H-1B Cap Deadline: Are there other options?

It’s April and the H-1B cap deadline has come and gone. The H-1B program is stressful and the lottery can be unkind.

The primary frustration for employers and foreign nationals alike in the H-1B process is that each year’s quota of visas is used up very quickly and those visas that are used, are given in a “lottery”. For example, in the 2015 H-1B cap season, the Immigration Service received twice as many H-1B Petitions as available cap numbers during the first week that the cap was opened. Employers possessed a roughly 50% chance of having their H-1B Petition selected in the annual cap “lottery” selection process and, for many individuals being sponsored, the H-1B is the only viable option for the employer to hire that individual into the open position at the company.

As with 2016, over the last several years, the cap has been reached during the first week of availability and well before the end of the government’s fiscal year, which has resulted in a frustrating situation for employers and foreign national applicants.

So what are your options if you are not selected for an H-1B visa slot? At FordMurray, we often counsel employers and individuals on a variety of options that may fit their situation, such as:

  • Can the employee enroll in a higher degree program, maintain F-1 status, and continue to work, part-time under CPT?
  • Is the employee from Canada or Mexico? Do they qualify for a TN visa?
  • Is the employee from Australia? Do they qualify for E-3 visa?
  • Is the employee from Chile or Singapore? Do they qualify for H-1B1 visa?
  • If the employee is a top individual in his/her, is the O-1 a possibility?
  • Can the employee remain on the foreign entity’s payroll? Do they qualify for B-1 in lieu of H-1B?
  • Is the employee from a country that has a treaty with the US supporting E status? Can he/she open a business in the U.S. that supports this E status for you?
  • Does the employer have operations overseas where the employee can work for 12 months or more before transferring back to the U.S. in valid L-1 status?

While the H-1B program is very popular because of its dual intent property and because of the avenues that have been established to transition from H-1B to US Lawful Permanent Resident, the annual cap and the lottery makes it a very stressful option for many employers and individuals. But, perhaps there is hope in other aspects of the law that can allow you to continue in your employment with the Petitioning company?