AUTHOR:  Robert Neale.

The U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions against the upcoming Fiscal Year 2015 H-1B quota on April 1, 2014.  This year’s H-1B season is expected to be similar to last year’s, during which the 85,000 “cap” on new H-1Bs was reached in the first week petitions were accepted. A total of 124,000 petitions were filed last year. The cap applies to individuals who have never held H-1B status or who previously worked only for an H-1B exempt employer. Employers should plan now for a possible 40-percent-rejection rate on their H-1B petitions.

Alternative visa options for affected employees include the following:

  • For Canadian and Mexican professionals, the TN visa available under the North American Free Trade Agreement.
  • For nationals of Australia, the E-3 visa.
  • For nationals of Chile or Singapore, the H-1B1 visa.
  • For intracompany transferees, the L-1 visa. An organization with foreign operations can transfer employees to its U.S.-affiliated company in a similar position under certain circumstances.
  • For individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify, the 17-month optional practical training (OPT) extension.
  • For individuals who may qualify under the extraordinary ability criteria, the O-1 visa.
  • For essential employees if the company and foreign national share the same nationality, the E-2 visa.
  • For individuals in F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training (CPT).
  • For individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent I-140/485 green card process and work authorization issuance.
  • For individuals whose employers have offices outside the United States, the individuals can be placed on the foreign payroll and work abroad until next year’s H-1B filing period or until another type of work visa becomes available.
  • For individuals entering a structured training program, the H-3 visa.
  • For individuals who can be categorized as an Exchange Visitor, the J-1 visa.

Every situation is different and your legal representative should be consulted to ensure you have an alternative plan should the H-1B petition filed on behalf of a foreign national employee be rejected.