H-1B Petitions and the H-1B Cap
As background, the law puts a ceiling, or “cap,” of 65,000 on the number of new H-1B petitions that may be approved in any fiscal year. The numbers are made available for an employment start date of October 1, the beginning of the federal government’s fiscal year. Employers may file petitions to capture an H-1B number that will take effect October 1 beginning April 1.
If more than the 65,000 petitions subject to the cap are filed at the beginning of April, there is a lottery to determine which cases will be accepted.
We therefore urge employers to assess their need for H-1B personnel for the next fiscal year now and plan to file new H-1B petitions early – the first of April.
As a reminder, petitions for a change of employer, where the individual already has H-1B status with another company, are generally not subject to the cap unless the previous H-1B employer fell within certain categories of educational or non-profit institutions.
With the H-1B cap putting limits on the hiring of needed foreign workers, alternative classifications should be kept in mind. These include:
E-3 VISA FOR AUSTRALIANS– These visas are available to Australian citizens only. The requirements are essentially the same as for H-1B classification. One gets two years initially, with unlimited two-year extensions.
F-1 STUDENTS (PRACTICAL TRAINING) – Foreign students in F-1 status, who have received a science, technology, engineering and math (STEM) degree included on the STEM Designated Degree Program List and have already received an initial grant of post-completion OPT, may apply for an EAD extension and remain in F-1 status if the employment meets certain requirements. On March 11, 2016, DHS published a regulation that extends the period of work authorization from a current 17-month period to 24 months. These students will now have additional opportunities to apply for H-1B visas while they continue to engage in employment related to their academic field of study. Students eligible for STEM extensions will now enjoy a total of 36 months of practical training after graduation – 12 months of an initial work permit and an additional 24 months under the new STEM extension regulations. The student must be employed in a STEM occupation by a U.S. company that participates in E-Verify. The company must also agree to provide a work-based training program related to the students’ academic studies and periodic performance evaluations to designated school officials, agree not to replace any U.S. worker with the foreign student, and provide wages and benefits comparable to other similarly situated U.S. workers employed at the work site. Further, the company must understand that its compliance efforts may be monitored by DHS through unannounced on-site audit visits to determine employer maintenance of training program records and compliance with the regulatory requirements.
J-1 EXCHANGE VISITORS (educational exchange students, au pairs, interns, summer work/travel programs) – The following categories of the J-1 visa will be of primary interest.
- Interns: are either currently enrolled in and pursuing academic post-secondary studies abroad, or have graduated from an overseas institution not more than 12 months prior to the start of the exchange program. Internships may be granted for 12 months.
- Trainees: have a post-secondary degree or certificate from an overseas academic institution plus one year of experience overseas, or have five years of related work experience outside the U.S. Trainees can get J-1 visas for 18 months.
L-1 INTRACOMPANY TRANSFEREES – Must have been employed for at least one full year out of the three prior years as a manager, executive, or in a specialized knowledge capacity with overseas parent, affiliate or subsidiary of U.S. company. Must be coming to the U.S. for a position in one of these categories. L-1A, for managers and executives, has a cap of seven years that one may remain in the U.S. L-1B, for specialized knowledge personnel, has a five-year cap.
O-1 ALIENS OF EXTRAORDINARY ABILITY in Science, Arts, Education, or Business. May be approved for an initial period of three years. Extensions available in one-year increments.
TN MEXICAN & CANADIAN NATIONALS – Nationals of Mexico and Canada may be eligible for TN work authorization if they are employed in occupations listed in the NAFTA Free Trade Agreement. The list of occupations includes accountants, engineers, scientists, and systems analysts among others. Canadians may apply for entry at the border while Mexican nationals must apply for a visa at a U.S. Consulate in Mexico.