When the H-1Bs Run Out: Alternative Visas and Strategies

Different strategies to keep in mind if your H-1B visa expires.

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Say you’ve determined you qualify for a work-authorizing H-1B visa, and you’ve found an employer willing to sponsor you: The next issue you need to consider is timing, for unlike most other nonimmigrant visas, H-1Bs are not continuously available to those who qualify for them.

How the H-1B Cap Has Worked

Starting in 1990, the U.S. Congress has imposed a yearly numerical limitation, or “cap,” on new H-1Bs. Initially, the cap was not much of an issue, as the annual allotment of 65,000 H-1Bs exceeded the number of applicants each year. Since 1997, when the supply of H-1Bs fell short of demand for the first time, Congress has upped the cap twice, providing a larger supply of H-1Bs for fiscal years 1999 through 2003. Also, some relief is provided by the fact that a cap exemption applies to the first 20,000 applicants with masters degrees from U.S. universities. For fiscal year 2004, however, the H-1B cap reverted to its original 1990 level of 65,000, where it remains as of early 2013.

In recent years, H-1B anxiety has become chronic. The tension begins to build each year around April 1, the first day for filing against the new allotment of H-1Bs that becomes available at the October 1 start of the federal fiscal year. Each April, USCIS starts a public countdown, periodically announcing how many H-1B petitions have been filed against the cap so far. As the supply dwindles, the pace of filings picks up, along with speculation as to when the cap will be reached.

For fiscal years 2004 and 2005, the cap was reached before the end of the fiscal year. For fiscal years 2006 and 2007, the H-1Bs ran out sooner, even before the beginning of the fiscal year for which the petitions were filed. Then, for fiscal year 2008, the cap was reached and exceeded on a single day, April 1, 2007, the very first day for filing. Adapting to this stampede, USCIS announced the following year that H-1B petitions would be accepted for at least the first five business days of April, so that petitioners wouldn’t feel compelled to file all their petitions on a single day. For fiscal year 2009, then, the cap was reached on April 7, 2008.

For fiscal years 2010 through 2011, things eased a bit, and the pattern was similar to 2004/2005, with the cap reached during the fiscal year to which it applied. For fiscal year 2013, the pattern was more like 2006/2007, with the H-1Bs running out on June 11, 2012, well before the beginning of the fiscal year for which the petitions were filed.

What Happens to Applicants When the H-1B Cap Is Reached

The H-1B rules make no provision for carrying petitions over from one fiscal year to the next. Whenever the H-1B cap is reached before the end of the fiscal year to which it applies, USCIS simply stops accepting H-1B petitions until the following April, when it will start to accept petitions for the new fiscal year. Thus, after the cap is reached in a given year, a new H-1B employee must wait until the following April before the sponsoring employer can file a petition, and then until the beginning of the new fiscal year in October to start working.

For the years when the cap was exceeded as soon as the new filing season opened up in April, USCIS has run a “lottery,” randomly selecting the target number of petitions from those filed. If a petition were filed for you in such a year and then passed over in the lottery, you would have a full year to wait to try again in April for the fiscal year starting the following October. Thus, your wait could stretch out to 18 months – and if you were in the U.S. in another nonimmigrant status, this might mean having to leave and wait outside the U.S. for your new visa.

On the other hand, a cap-mitigating rule or an alternative visa category might come to your aid, releasing you and your prospective H-1B employer from cap-induced limbo.

H-1Bs That Aren’t Counted Against the Cap

First of all, the annual H-1B cap applies only to new H-1Bs. If you have been in H-1B status within the last six years, a second petition for you will not be subject to the cap, whether you’re extending your time with the same employer or starting work for a new employer.

Then, too, some new H-1Bs are not counted against the cap because the petitioning employer enjoys an exemption. You will have no cap worries if your H-1B sponsor is an institution of higher education, a nonprofit affiliated with such an institution, or a nonprofit or governmental research organization. A professor offered a job at a U.S. college, for example, clearly avoids the cap. Less obviously, a physical therapist sought by a nonprofit hospital associated with a medical school may also rate an exemption from the cap, depending on the particulars of the relationship between the hospital and the school.

Breaks for Students at U.S. Colleges and Universities

Foreign students studying in the U.S. can benefit from a couple of cap-softening provisions specifically for them. For one thing, Congress has set aside a separate annual allotment of 20,000 H-1Bs for students who earn a master’s or higher degree from a U.S. school. After receipting the first 20,000 “masters cap” petitions, USCIS will consider any additional qualifying petitions under the regular H-1B cap unless it, too, has been exhausted.

If an H-1B petition can be filed for you before your F-1 student status expires, you may be granted a special extension of status to bridge the “cap gap” that would otherwise open up between your old F-1 status and your new H-1B status. If you are working under a grant of post-graduation Optional Practical Training (OPT) when the petition is filed, you will have work authorization during the cap gap as well.

Similar Visas for Professionals from Canada, Mexico, and Australia

If you are from Australia, you should check out the E-3 visa, which authorizes work in occupations similar to those covered by the H-B. Canadian and Mexican workers who qualify for H-1Bs should look into the TN visa as a possible alternative. See Nolo’s articles on TN visas under “Work Visas (Nonimmigrant).”

Other Work-Authorizing Visa Categories That May Apply

The H-1B is broader than most other work-authorizing nonimmigrant visa categories. Nevertheless, as a prospective H-1B, you may find that another work-authorizing category fits you as well.

The L-1 category, for instance, is for intracompany transferees, R-1 for religious workers, P-1 for internationally recognized athletes and entertainers, I for journalists, O-1 for “persons of extraordinary ability.” Though the E-1 and E-2 categories are defined a little more broadly as to the work they contemplate – supervisory, executive, or specialized knowledge – they remain relatively narrow because of specific characteristics the employer itself must demonstrate in order to employ people in the category. See Nolo’s articles under “Work Visas (Nonimmigrant).”

Cultural Exchange Visas

A few prospective H-1B workers may be able to use the J-1 or Q-1 visa. Employment in these categories must be in the service of a very specifically defined cultural exchange program, and the rules generally require return to the home country once the program is finished. See Nolo’s articles on “Student and Exchange Visitor Visas.”

B-1 In Lieu of H-1B

If you qualify for an H-1B visa but will be paid by a company overseas for the work you will be doing in the U.S., consider filing for a B-1 “business visitor” visa in lieu of an H-1B. See “Application Process for a B-1 or B-2 Visitor Visa.”

Starting the Green Card Process

Ordinarily, getting a green card (U.S. lawful permanent residence) takes far longer than getting any nonimmigrant visa or status, including the H-1B. If, however, you qualify for an employment-based green card category in which there is currently no backlog and for which no labor certification is required, it may make sense to go ahead and start the green card process. As a green card applicant, you can even qualify for employment authorization to cover the time your application is pending. See “Getting an Employment-Based Green Card” for details.

Seeing a Lawyer

Understanding how the H-1B cap affects you and coming up with a strategy to address cap-induced delays involves many variables particular to you. A good immigration lawyer is a good idea.

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