The U.S. Citizenship and Immigration Services (USCIS) announced April 7 that the H-1B cap has been reached for fiscal year 2017. Although USCIS did not indicate how many H-1B petitions it had received, the number exceeds the total 85,000 available H-1B visas slots (65,000 regular H-1B visas and an additional 20,000 H-1B visas for those with a U.S. Master’s degree or higher).
As in years past, because the demand again exceeds the supply for available H-1B visas, all cap-subject H-1B applications received in the first five (5) business days of April will be included in a lottery to determine which ones are rejected and which ones will be considered for adjudication. Employers and prospective H-1B employees will likely have to wait until the end of April 2016 (if the H-1B was filed with premium processing service) and possibly even the end of May (if the H-1B was filed with regular processing service) to find out if their H-1B was selected in the lottery.
In the meantime, employers and prospective employees are encouraged to consider other options in lieu of an H-1B, especially in light of the small percentage of total applications that can legally be selected. The following is a list of several alternatives to the H-1B:
Is the employee eligible for another form of work authorization? For example, would the employee qualify for an L-1A/L-1B for intra-company transferees, TN professional for Canadian/Mexican citizens, E-3 professional for Australian citizens, H-1B1 professional for Singaporean/Chilean citizens, O-1 for an individual with extraordinary ability?
Is the employee interested in enrolling in school or extending their enrollment in school? F-1 students enrolled in pre-approved educational institutions in the U.S. may be eligible for Curricular Practical Training (CPT) and/or Optional Practical Training (OPT) work authorization.
Can the employee attend a training program to advance his or her career abroad? For example, the employee may qualify for a J-1 or H-3 trainee status. Please note that these trainee visas are not a form of work authorization.
Is the employee a budding entrepreneur interested in investing in the U.S.? If so, the E-2 Treaty Investor status may be an option.
Does the employee qualify for lawful permanent residency (i.e. a green card) in the U.S. based on sponsorship by a family member (e.g. a US citizen spouse or parent), diversity lottery, a self-sponsored EB-1 (e.g. individuals with extraordinary ability, outstanding researchers, multi-national executive/manager), or other method? There is often a misconception that an individual must first acquire a non-immigrant status, such as H-1B status, before he or she can apply for lawful permanent residency in the U.S., but this is simply not the case.
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