by Chris Musillo

The H-1B cap opened on April 1, 2016. On April 7, 2016, or shortly thereafter, the USCIS will announce that it has received more than 85,000 H-1B petitions, which is the H-1B cap limit. MU Law believes that the USCIS will reports that at least 200,000 H-1B petitions will have been filed, and perhaps as many as 250,000. As a result, the USCIS will hold an H-1B lottery.

The H-1B cap is clearly a drain on the US economy. Nonetheless, until Congress acts to help the American economy and raises the H-1B cap, the H-1B lottery will result in many otherwise qualified H-1B workers having to consider alternative visa options. Here are some options:

  • Those that have had an H-1B in the past are often not counted against the H-1B cap. If you have had an H-1B approved in the past, you should contact your attorney, even if you have never entered the US and activated the H-1B.

  • H-1B cap-exempt employers can file for H-1Bs at any time. An H-B cap-exempt employer is (1) a University; or (2) a non-profit that is related to a University, such as a University Hospital; or (3) A Non-Profit research organization; or (4) A Non-Profit government research organization.

  • Nationals of these countries have alternative visa categories that are similar to the H-1B, but are not subject to the H-1B cap: Canada, Mexico, Australia, Chile, and Singapore. If you hold a passport from any of these countries you can seek a visa such as a TN-1, E-3, or H-1B1.

  • OPT for F-1 Students. The F-1 rules liberally allow students to work in the US. Many students can now work for 24 month, after their graduation from a US college.

  • Green Card filings can often be done quickly. All categories except India EB-2, EB-3, China EB-2, EB-3 and Philippine EB-3 have very favorable processing times. Most applicants who qualify for categories other than these should expect their green cards in 12-18 months.

  • The L-1 visa (Multinational Executive, Managers, and Specialized Knowledge workers), the O-1 (Extraordinary Ability) and the E-1/E-2 (Treaty Trader and Treat Investor) offer some options for high level and critical employees.

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