Troutman Sanders: Alternatives Now That the H-1B Cap Has Been Reached

Troutman Sanders: Alternatives Now That the H-1B Cap Has Been Reached

By Mark J. Newman, Susie Kim and Aimee Clark Todd

U.S. Citizenship and Immigration Services (USCIS) announced that, effective November 22, 2011, the H-1B cap had been reached. The cap applies only to petitions for new H-1B employment, not to H-1B extensions or an H-1B change of employer (unless the prior employer was cap-exempt). Now that the cap has been reached, H-1B petitions subject to the cap cannot be filed again until April 1, 2012, for a work start date of October 1, 2012.

Employers who need to hire a foreign worker and would normally use the H-1B category should consider the alternative categories that are available:

  • As mentioned above, employers may file H-1B petitions for those already in H-1B status previously subject to the cap, or who held such status during the last six years (and who have not remained outside the U.S. for one year or longer).
  • H-1B petitions for certain university or college employees, including those working for related research entities, are exempt from the cap.
  • H-1B1 petitions for nationals of Singapore and Chile are subject to a separate cap, which has not been reached.
  • The H-2B category is available for certain intermittent, peak-load or seasonal work (also subject to a cap).
  • The H-3 and J-1 categories are available for those receiving training in the U.S.
  • E-1/E-2 petitions can be filed if a treaty with the person's home country exists and the U.S. company is owned at least 50% by individuals or entities with that same nationality.
  • E-3 petitions may be filed for nationals of Australia, with similar requirements as the H-1B category.
  • I petitions can be filed for foreign media workers (note that this is not available for regular employment of a media worker in the U.S., but only for foreign media workers temporarily in the U.S. on behalf of a foreign entity).
  • L-1 petitions can be filed for certain internal transfers from related companies abroad.
  • O petitions can be filed for individuals of extraordinary ability in their field.
  • P petitions can be filed for certain coaches, athletes, entertainers and culturally unique performers.
  • R petitions can be filed for religious workers.
  • TN petitions can be filed for nationals of Canada or Mexico working in a listed occupation.
  • The "B-1 in lieu of H-1B or H-3" category is available for individuals who will remain on foreign payroll while on a brief work trip to the U.S. This category is highly scrutinized.Individuals may wish to enroll in a U.S. school to obtain F-1 or M-1 student status and return to school while waiting for an employer to file an H-1B petition when the cap opens again next year.

As indicated above, there are various alternatives to the H-1B category but each is very limited in its own way. For this reason, every case must be assessed on its own merits.

If you have any questions about the information in this advisory, please contact any member of the Immigration Group.

About Troutman Sanders

Troutman Sanders is an international law firm with offices in North America, Europe and Asia. Founded in 1897, the firm's heritage of extensive experience, exceptional responsiveness and an unwavering commitment to service has garnered strong, long-standing relationships with clients across the globe. These clients range from multinational corporations to individual entrepreneurs, federal and state agencies to foreign governments, and non-profit organizations to businesses representing virtually every sector and industry.

Troutman Sanders lawyers provide counsel and advice in practically every aspect of civil and commercial law related to the firm's core practice areas: Corporate, Finance, Litigation, Public Law and Real Estate. With more than 50 practice groups focused on specific aspects of these areas, the firm is defined by its considerable knowledge base and proactive approach to addressing legal and business challenges.

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