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Loan T. Huynh

Loan T. Huynh Immigration

lhuynh@fredlaw.com
612.492.7165
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Alternative Visa Options and Strategies For The Capped-Out H-1B Employee

By: LOAN T. HUYNH

May 2007

It is still difficult to believe that U.S. employers will not be able to file cap subject H-1B petitions until April 2008 and that without legislative relief there will be no new H-1B visas available until October 2008. Unfortunately, as of April 2, 2007, this is the reality that immigration attorneys and employers face since USCIS announced that it had received enough petitions for fiscal year 2008 to exhaust the 65,000 available H-1B visas. Between now and October 2008, employers should consider other available visa options and strategies to employ those employees who would have qualified for H-1B status but for the cap.

Is the Employment Relationship Subject to the H-1B Cap?


A strategy that is often overlooked is to first determine whether the employment relationship is even subject to the H-1B cap. The H-1B cap only applies to new petitions filed for foreign workers that have not been counted against the H-1B cap within the past six years. Certain H-1B petitions not subject to the cap can still be filed. These include:

  • Any petitions, including amended petitions, extensions, or change of employer, filed for current H-1B workers (unless he or she is changing employment from a cap-exempt employer to a non-exempt employer), and
  • 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.

Other Visa Options


There are still many other temporary work visas which employers can consider to employ capped out foreign workers if they cannot file an H-1B cap exempt petition.

  • B-1 in Lieu of H-1B

    This option may be available for foreign nationals who have an overseas employer that requires a foreign national to provide professional services for the benefit of the overseas employer in the U.S. The foreign worker must be paid directly by the overseas employer.
  • E-1/E-2 Treaty Workers

    The E-1/E-2 visa is for executives, supervisors, and essential employees of E-1/E-2 employers. This is available to foreign nationals entering the U.S. solely to carry on substantial trade or develop and direct the operations of an enterprise in which they have invested or are actively in the process of investing a substantial amount. Once the E-1/E-2 company has been established, key employees from the treaty country can also enter under these visas. Those key executives, supervisors, and essential employees must have the same nationality as the treaty employer.
  • E-3 Visas for Citizens of Australia

    Citizens of Australia can qualify for the E-3 visa. The requirements for the E-3 visa are the same as for the H-1B visa, in that the E-3 can only be used to employ professionals coming to the U.S. to fill professional positions that require a bachelor's degree or equivalent in a related field.
  • H-1B1 Visas for Citizens of Singapore and Chile

    The USCIS reserves 6,800 H-1B1 visas out of the 65,000 for use only by nationals of Singapore and Chile as part the US-Chile and US-Singapore Free Trade Agreements. As such the H-1B annual quota is really 58,200 and not 65,000. At press time, these reserved H-1B1 visas are still available and employers can continue to file H-1B1 petitions to employ nationals of Singapore and Chile. The requirements for the H-1B1 are very similar to the requirements for the H-1B visa in that it can only be used to employ professionals coming to the U.S. to fill professional positions that require a bachelor's degree or equivalent in a related field.
  • H-3 Trainee

    The H-3 visa is available to a foreign worker who is entering the US to engage in a training program where productive employment will be incidental to the training, the training is not available in the foreign country, and the training will assist the employee to qualify for employment outside the U.S.
  • J-1 Trainee

    A  J-1 trainee is eligible to work for a U.S. employer and be compensated for training purposes as long as the terms of the training program are approved through a J-1 program sponsor. Most J-1 trainee programs can be no more than 18 months and cannot be extended. The trainee must be sponsored by a USIA-approved Exchange Visitor Program.
  • L-1 Visa for Intra-Company Transferees

    To qualify for the L-1, a foreign worker must have been continuously employed abroad for at least one of the past three years by a qualifying foreign entity, such as a subsidiary, affiliate, branch, or joint venture of a U.S. company. The L-1 visa is only available for executives, managers, or employees with specialized knowledge.
  • O-1 Visa

    The  O-1 visa is for individuals with extraordinary ability in science, sports, and business and distinguished ability in the arts/entertainment. Employers or agents can file O-1 petitions on behalf of a foreign national.
  • TNs for Citizens of Canada and Mexico

    The TN was created specifically under the provisions of the North American Free Trade Agreement ("NAFTA") to facilitate movement of business professionals between Canada, Mexico, and the U.S. There are no numerical limitations on TN classification and no minimum wage requirement for TN classification. The TN is limited in that it is only available for professional occupations listed under NAFTA. In addition, employers can only request TN classification for a one-year period for the foreign worker, although it can be renewed indefinitely in one-year increments.

Other Strategic Considerations


In addition to seeking other work visa options, employers should also consider the following:

  • Starting the recruiting and hiring process now, in order to be ready to file new H1-B petitions on April 1, 2008, even though the employment start date will not be until   October 1, 2008; and,
  • Filing H-1B petitions as soon as allowed for fiscal year 2009 for employees whose F-1 or J-1 practical training will expire after October 1, 2008;
  • Having foreign students maintain F-1 and J-1 student status in cases where there is a gap between the end of the F-1 and J-1 (including the grace period) status and the time when an H-1B petition can be filed; and,
  • Starting the permanent immigration ("green card") process for employees. This process can be started through the PERM labor certification process or the filing of an I-140 immigrant petition. This strategy is optimal in cases when the I-485 Application for Adjustment of Status can be filed concurrently with the immigrant petition since the applicant can also file an application for work authorization pursuant to the I-485 application.

Until Congress passes legislation that increases the H-1B quota to meet the realities of our growing global economy, U.S. employers must seek other alternatives. Now more than ever, it is critical for employers to start planning early with their immigration counsel to explore options specific to their needs and to ensure that the H-1B cap does not hinder their hiring goals and ability to supplement their workforce with professional foreign workers.