|By: Matthew R. Porter, Esq.|
Companies who employ H-1B workers often ask what their options are for employing foreign workers after the H-1B "cap" has been reached but before the start of the new H-1B cap season. At a time when human resources departments begin recruiting foreign talent to sponsor their H-1B visas for the upcoming cap season, knowing your visa options can be quite valuable.
By now, most companies realize that USCIS has received enough H-1B visa petitions for fiscal year 2012 to exhaust the 65,000 available H-1B visas. Between now and the start of the next fiscal year, employers should consider other available visa options and strategies to employ foreign nationals who would have qualified for H-1B status but for the cap. This article is part one of two articles in a series aimed at providing alternatives for companies who cannot utilized the H-1B currently due to the cap being reached.
Background of H-1B Cap Issues
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers or computer programmers. Congress set the numerical limitation (the “cap”) on the amount of H-1B visas at 65,000. There are also 20,000 H-1B visas set aside for H-1B workers who have obtained a U.S. master’s degree or higher. Once these numerical limitations are reached, USCIS will not adjudicate any more H-1B petitions in the fiscal year. The USCIS's fiscal year begins on October 1st. An employer, however, may file a petitition up to six months in advance of the foreign worker's start date, or April 1st. That is why you may have heard that "cap season" begins on April 1st. The problem for employers who depend on the H-1B visa to fill their labor force is understanding their visa options after the the H-1B cap is reached until the start of the new cap season on April 1st. The following describes several options.
Is your case subject to the H-1B Cap?
Before you look at your visa options, you should determine whether the H-1B petition itself is subject to the cap. For example, if you wanted to file an H-1B visa today, you could be barred from doing so because the cap has been reached. The H-1B cap applies to new petitions filed for foreign workers that have not been counted against the H-1B cap within the past six years. So if you are looking to hire someone who has not been counted against the cap within the past six years, like a college student on an F-1 visa, you would be filing a cap-subject petition and must wait until April 1st.
On the other hand, USCIS will continue to accept and process "non-cap" petitions, which may be filed at any time. These non-cap H-1B visa are filed to:
- Extend the amount of time a current H-1B worker may remain in the U.S. (i.e., H-1B extensions);
- Change the terms of employment for current H-1B workers (i.e., amended H-1B petitions);
- Allow current H-1B workers to change employers (i.e., H-1B transfers); and
- Allow current H-1B workers to work concurrently in a second H-1B position (e.g., typically only used when the worker is employed part-time by H-1B employer 1 and wishes to work part-time at H-1B employer 2).
- New petitions filed for employment at institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations or government research organizations. For example, a non-profit hospital that has a residency program in affiliation with a medical school may be considered an affiliated nonprofit entity of an institution of higher education.
Generally speaking, if you are sponsoring a worker for an H-1B visa case that fits within one of these five categories, you can proceed to file the H-1B visa immediately and do not have to wait for the opening of cap season. If you do not fit in one of these five categories, then you may be able to take advantage of another visa classification. The principal advantage of utilizing another visa category is that you can get the immediate benefit of employing a skilled foreign national without having to wait until April 1st. Of the course the disadvantage is that the H-1B visa category is very flexible and can be extended for six years (longer if an employment-based greed card application has been filed), and allows a foreign national to come to the U.S. on a temporary basis yet intend to immigrate permanently to the U.S. - this concept is known as "dual intent."
For an employer's visa options in lieu of H-1B, see part two of this blog series here.
Contact Matthew R. Porter Today:
To schedule a consultation to discuss your H-1B visa case, please contact immigration lawyer Matthew R. Porter, Esq. I have vast experience in processing employment-based visas and green card through PERM applications. If you have an H-1B visa problem, contact Mr. Porter today.