H-1B Visa Cap Reached: What Options Remain for Businesses That Missed the Cut?

On November 22, US Citizenship and Immigration Services announced that the cap of 65,000 applications for 2012 H-1B visas had been met, and that petitions received after that date would be rejected. What does this mean for employers seeking work visas for foreign nationals in 2012? The short answer: they have to wait until April 1, 2012, when they can re-file petitions for the 2013 fiscal year. For the longer answer, we turn to lawyers on JD Supra:

H-1B Quota Filled: Some Options Remain (Lane Powell PC – Immigration Law): 

“Employers who haven’t already filed H-1B petitions will be left to consider alternatives for foreign candidates, or have openings go unfilled until October 1, 2012… There are employment-based alternative immigration options other than H-1B status, including the following:

  • L-1 intracompany transfers for persons who worked for a foreign entity related to a U.S. company for at least one year;
  • For Canadians and Mexicans, TN status under the North American Free Trade Agreement (“NAFTA”);
  • J-1 training and other exchange programs;
  • E-1/E-2 treaty investor and treaty trader status for numerous countries;
  • E-3 visas for Australians;
  • O-1 for persons with extraordinary ability;
  • Returning to school for a higher level of education and work authorization; and
  • Labor certification for permanent resident status under the “PERM” process as a first step toward “green cards.” Note, however, there are processing backlogs for many types of permanent resident applications.

Other creative alternatives for a temporary or a stopgap measure are available as well.

Employers need to resist any temptation to have potential employees begin or continue working, even in what might be considered volunteer positions, without the proper work authorization. Hiring employees without the proper authorization can subject the employer to penalties and subsequent scrutiny under immigration law.” 

Fiscal Year 2012 H-1B Cap Reached (Morgan Lewis):

“U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap was reached and that all cap-subject H-1B petitions received after November 22, 2011 will be rejected… What should employers do?

  • Employers should immediately inform their recruiters that candidates who will require H-1B sponsorship and are subject to the cap cannot commence employment in H-1B status until October 1, 2012, although other visa options may be available.
  • Employers should plan to file H-1B petitions to be received by USCIS on or after April 2, 2012 on behalf of the following foreign nationals whom they may wish to retain:
  • Recent graduates employed pursuant to F-1 optional practical training to ensure continued employment eligibility after expiration of their employment authorization documents.
  • Employees in the United States working in another nonimmigrant status and otherwise ineligible for continued authorization after October 1, 2012.
  • Candidates abroad subject to the annual H-1B limit and ineligible for another type of work-authorized status in the United States.”  

Special Immigration Alert: H-1B Cap Reached for Fiscal Year 2012 (Epstein Becker & Green, P.C.):

“Please note that the USCIS will continue to accept and process H-1B petitions from employers who are cap-exempt. In addition, the USCIS will continue to accept and process H-1B petitions that relate to foreign nationals who are in H-1B status and already have been counted against the cap in this or a prior year. Finally, the USCIS will continue to accept and process petitions filed to: (a) extend the time a current H-1B worker may remain in the United States; (b) change the terms of currently approved H-1B employment; (c) allow current H-1B workers to change employers; or (d) allow a current H-1B worker to accept concurrent H-1B employment.” 

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See alsoH-1B Visa Status: Time Is Running Out for 2012

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