A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, April 13, 2015

H-1B quota reached, what do I do now?

As expected, the FY2016 H-1B visa cap has been reached on April 7, 2015, and the USCIS will use a random selection process to choose a portion of the submitted applications for further processing.  If you haven't submitted an H-1B petition, or if your petition is not selected for further processing, are you out of luck?  Although the regular and master H-1B caps of 65,000 and 20,000 have been reached, foreign professionals may still be able to stay or work in the United States. The following are ten options that you may consider:

1)  Work for a quota-exempt "Institution of Higher Education” such as a college or university:  This exemption is quite straightforward.  Many academic researchers, teachers and professionals qualify for this exemption based on their employment at an accredited institution of higher education.

2)  Work for a non-profit organization affiliated or related to an Institution of Higher Education:  There are many such employers.  Many non-profit organizations such as medical clinics and community organizations are affiliated or somehow related to colleges and universities.  For examples, they may have internship programs for college students or offer an environment for students to practice their trade.  The USCIS has been quite reasonable with the meaning of “affiliated” and “related.”  The key here is to ask the employer the right questions to find out their relationship with colleges or universities.

3) Work for a nonprofit research organization or government research organization:  For private organizations, proper document is needed to document the nature of the research activities being conducted.

4) Employment at an H-1B exempt employer:  This exception is not known by many applicants.  For many petitions, the H-1B employer is not itself an exempted entity.  However, by virtue of the nature of the employment, the H-1B beneficiary has to physically work on-site at an entity which is an exempt institution. If so, the employment is also exempt from the visa cap.  Again, some investigation is needed to ascertain eligibility for this exemption.  Many categories of H-1B workers including IT professionals may qualify for it.

5) Applicants who are citizens of SingaporeChile, or Australia:  Separate visa categories and visa quota are available for these individuals.  For Singaporeans and Chileans, there is the H1B1 visa category.  For Australians, the E-3 visa category is designed for them. These individuals are not subject to the general H-1B cap.

6) Concurrent exempt employment:  For those applicants who are already working in exempt H-1B status, they are eligible to apply for concurrent non-exempt H-1B employment.  It is important for the applicant to maintain proper H-1B status at the exempt employment in order to continue working for the cap-subject employer.

7) Former H-1B workers who left the U.S.:  For H-1B applicants who were already counted once during the past six years, and who were absent from the U.S. for more than one year, they may seek to use the “reminder” of the six-year maximum period.  These applicants may also elect to re-apply for a new 6-year period of H-1B status.  However, if the absence was less than one year, the applicant may only apply to reenter the U.S. based on the reminder of the initial H-1B status.  

8) Former or current H-1B workers in the U.S.:  Foreign professionals who were granted cap-subject H-1B status before or who are in valid H-1B status, may apply for an extension of status or a change of status to H-1B without regard of the visa cap. However, they must meet other requirements such as not having used up their six years of maximum H-1B employment period.  

9) Use dependent status to work:  A foreign professional may also legally work in the U.S. as the spouse of an L-1 multinational company transferee or an E-1 treaty trader.  Similarly, one may also file a dependent adjustment of status application (I-485) along with an EAD application (I-765) if the principal spouse is eligible to adjust status.  Further, certain H-4 dependents may also apply for EADs under the most recent USCIS policy.

10)  Use STEM OPT to work:  STEM degree graduates may also take advantage of the additional 17 months of OPT period to work in the U.S. and apply for H-1B status next year.  

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