USCIS Completes Selection of H-1B Cap Cases

The Immigration Service has announced that as of May 4, 2015, it has completed the random selection process for cap-subject H-1B Petitions filed during the first five days of April. The Service will begin returning cases that were not selected to Petitioners in the coming days along with all filing fees tendered.

H-1B visas are still available in the following circumstances:

•Extensions of H-1B status for aliens currently employed in H-1B status by the petitioner

•New employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition does require a number under the cap and can only be filed when H-1B visa numbers are available].

•H-1 Petitions filed on behalf of citizens of Chile and Singapore (based on treaty obligations).

•New Petitions filed by “Exempt” Petitioners: the following organizations are exempt from the “cap” and may obtain H-1B status for new employees at any time:

•institutions of higher education

• a nonprofit organization related to or affiliated with an institution of higher education

• nonprofit research organization or governmental research organization

(These exempt classes are often referred to informally as “educational H-1B” cases, though this label is somewhat misleading.)

Note carefully: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education

Alternatives to the H-1B

The unavailability of private H-1B visa numbers will require a closer look at other visa alternatives. Briefly, these include:

•F-1 visa for students on Optional Practical Training (OPT) who are eligible for a STEM extension.

•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-1 (Treaty Trader) for citizens of countries having a commercial treatywith the US who are engaged in a substantial amount of trade principally with the country of nationality, or employed by a company of the same nationality engaged in such trade.

•E-2 (Treaty Investor) for citizens of countries having a commercial treatywith the US who have invested a substantial amount of money in a US business they are managing or directing, or employed by a company of the same nationality which has made a substantial investment in the US.

•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:

•The H-4 spouse of an H-1B who will, effective this month, be eligible for an Employment Authorization Document (EAD provided the H-1B principal is in the latter stages of a green card application.

•The L-2 dependent spouse of an L-1 who is eligible to obtain an Employment Authorization Document (EAD.

•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.

As always, please contact our office if you have any questions.