H1B Cap Reached: Alternatives/Options for Sponsorship

As our Immigration blog readers are well aware that the H1-B “specialty occupations” filing cap had been met for the fiscal year 2014. This means that no more H1-B cap subject petitions will be accepted by USCIS for the remainder of this year.

This was clearly a very disappointing news for many employers and prospective employees who could not get their petitions filed by April 5, 2013. A lottery was later conducted and several H1B cap subject petitions were not selected by the USCIS.

This leads to the pressing question – “Now what?”

With 2014-15 H1B Cap season still more than 6 months away, we believe this is a good time to discuss H1B alternatives available to foreign workers. This article is intended to provide an overview of alternatives to the H1-B visa sponsorship:

O-1A Extraordinary ability aliens:

The O-1 visa is suitable for individuals who have extraordinary ability or achievement in fields of science, arts, education, business, athletics, or motion picture and television. The petitioning U.S. employer must establish the alien’s extraordinary ability or achievement by submitting evidence that the foreign national is coming to the U.S. to continue to work in the field and that he or she meets the evidentiary criteria.

This classification is a useful alternative to the H-1B visa because it is neither cap-subject nor limts the time that an individual can remain in the U.S. on O-1 status. The extraordinary ability standard for O-1 is met by “sustained national or international acclaim.”

L-1 visa:

The L-1 visa is an option for companies with offices in the United States who wish to transfer employees to the US temporarily. To be eligible for an L-1A visa the petitioning employer must establish that the beneficiary has worked with the foreign office/branch or subsidiary for at least one year within the last three years as a manager, executive, or employee with specialized knowledge.

TN visa:

The TN visa was created under NAFTA agreement which allows certain citizens of Canada and Mexico to enter the U.S. under the non-immigrant TN status. It enables Canadians and Mexicans to temporarily work in the U.S. in a NAFTA-approved professional occupation as long as they meet the qualifying criteria.

E-3 visa:

The E-3 visa classification applies only to nationals of Australia as well as their spouses and children. E-3 principal applicants must be going to the United States solely to work in a specialty occupation as required for an H1-B visa. The spouse and children need not be Australian citizens.

J-1 visa:

A J-1 Visa is a non-immigrant visa available to aliens that fall under the designation of “Exchange Visitor”. J-1 exchange visitors travel to the United States through a Department of State approved sponsor program to teach, study, receive training or demonstrate special skills. Individuals who may qualify for J-1 status include: business trainees, primary and secondary school teachers, college professors, research scholars, medical residents or interns receiving medical training within the U.S. and other specialists.

H1-B for FY 2015:

Last but not the least, one can also wait for the H1-B FY 2015 quota which will open on April 1, 2014.