March 6, 2014

First, plan ahead and make sure that any cap-subject petitions, such as petitions for new hires that are currently in F-1 student visa status, are ready to be filed in the first week of April.

If the annual numerical limit or “H-1B cap” runs out in the first week, as they are expected to do, then you may not be able to hire some of those workers this year.

One strategy to consider is actively recruiting in countries with which the US has a treaty that offers a special work visa status to nationals or citizens of that country, which are likely to remain available even when the allotment of new H-1Bs is used up. Nationality-based visa categories that cover the same broad range of professional specialty occupations as the H-1B category include the E-3 for nationals of Australia, and the H-1B1 for nationals of Chile and Singapore. Both of these visa classifications require a posting at the work site and a Labor Condition Application filed electronically with the Department of Labor, but once that LCA is approved, the foreign worker may make a visa appointment and take their educational credentials, the signed and certified LCA, valid passport and a letter from the US employer to a visa interview at the US Embassy – there is no petition to USCIS for these categories. However, unlike the H-1B, these visas require continued non-immigrant intent, and are only granted for two years at a time.

Even simpler, but far more restrictive in scope, is the TN-1 visa category for citizens of Canada and Mexico: the applicant is only required to appear for inspection and admission at a US Port of Entry or Pre-Flight Inspection with a valid passport, original educational credentials related to the job – required education varies by job title – and a job offer letter from the US employer, but for admission as a TN-1 the offered position must fit exactly into one of the 64 enumerated job titles listed in the NAFTA Appendix.

Once those options are exhausted, the company and foreign worker may want to review eligibility case-by-case for more restrictive visa types, such as the E and L visas, and the H-3 and J-1 for trainees, but nothing else has the scope and flexibility to cover a vast array of professional jobs as the H-1B.

Contact Karin Wolman for more information about the H1-B Cap.