The H-1B Limitation on Stay

U.S. Citizenship and Immigration Services (USCIS) has announced that as of November 22, it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2012. This was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012 (i.e. now!).

• Extensions of stay for current H-1B workers.
   

• Changes in the terms or conditions of employment for current H-1B workers.
   

• Transfers of current cap-subject H-1B workers to new employers.
   

• Petitions for concurrent employment of H-1B workers.
   

• Petitions for citizens of Chile and Singapore
   

• Petitions for new employment by cap-exempt employers.
   

• Petitions by new employers for former cap-subject H-1B workers who have been in H-1B status within the past 6 years (time previously spent by these workers in H-1B status is counted toward the 6 year limitation on stay)

Alternatives to the H-1B Visa

• TN visa status for citizens of Canada or Mexico
   

• L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year (in some cases, six months if the petitioner has a “Blanket L-1 Petition” approved)
   

• E-3 visa status for citizens of Australia
   

• J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)
   

• J-1 status through third party sponsors where the goal of the employer is to train the visa applicant
   

• O-1 visa status for aliens of extraordinary ability

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

• An alien whose spouse is applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”
   

• An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver
   

• An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.