H-1B Cap, Exemptions, and Alternatives

H-1B Cap

There are 65,000 H-1B visas available each year, with some of these set aside for free-trade programs with Singapore and Chile. In addition, there are an additional 20,000 visas set aside for those with advanced degrees (master’s or higher). Historically, the H-1B cap has hit before the year is over, usually between April and October. You can check theĀ current H-1B count online. With the bad economy, it looks like the visas will last a bit longer.

The timing of the H-1B application therefore becomes critical. New visas are released at the start of the fiscal year, October 1. For the H-1B, you can apply up to 6 months ahead of the work start date, so that April 1 is the earliest date to apply. When the economy is strong, all the visas are used up in the first week of applications. If there are more applicants than visas during the first week, USCIS holds a lottery. Accordingly, it is recommended to start preparing H-1B visa petitions starting in February, so that they are ready to file April 1.

H-1B Cap Exemptions

Certain petitions are not subject to the H-1B visa cap. These include petitions by institutions of higher education, affiliated nonprofits, or nonprofit or governmental research organizations; petitions for current J-1 holders who have obtained a waiver through the State 30 program; and petitions for extensions of stay or new employment where the person has already been counted in the last six years and the person has not been out of the country for a full year.

As an example, public school teachers may be able to qualify for an exemption to the cap if their school works with a local university to place student teachers.

H-1B Alternatives

In the event that the cap is reached early and the employer does not qualify for an exemption, you will need to seek an alternative to the H-1B visa, such as:

  • E Treaty Traders and Investors (for nationals and firms of a country with a trade treaty in place)
  • H-2B Seasonal Workers (if the need for the worker is of limited duration)
  • J Exchange Visitors (Interns and Trainees may qualify)
  • L Intracompany Transferee (if the worker has experience at a foreign affiliate of the petitioner)
  • Q Cultural Exchange (if there is a cultural exchange component to the work)
  • R Religious Worker (for religious positions)
  • TN NAFTA Porfessionals (for Canadians and Mexicans)

 

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