My Case Was Not Selected in the H-1B Cap - Now What Do I Do?

stop-sign-1334670-m.jpgMost foreign workers and U.S. employers are aware that only 65,000 H-1B visas can be issued each year (with an extra 20,000 visas that are given to foreign workers who have Master's degrees from U.S. universities). The reason for this limitation is because Congress created a cap on the amount of H-1B visas that could be approved each year. (However, there are a number of special types of foreign workers and companies that are exempt from this cap, so their cases are not counted towards the H-1B cap).

The H-1B cap would not be a problem if only a few foreign workers applied for H-1B visas. However, every year the demand for H-1B visas far, far exceeds the supply - with the result that several thousands of hopeful foreign workers do not receive H-1B visas. Thus, the H-1B cap presents challenges to U.S. companies and businesses who seek to employ talented foreign workers but who, because of the cap, are unable to obtain work authorization for these workers through the H-1B program.

Fortunately, employers and foreign workers who are unable to secure H-1B visas do have other options available in order to obtain work authorization in the United States. There are a number of employment-based temporary visas which, depending on the specific qualifications of the worker, can be used as an alternative to the H-1B visa.

For instance, there is the L-1 visa which can be used for foreign workers who are employed by a company abroad that has a branch or affiliate office in the United States. L-1 visas are reserved for employees who will be working in a managerial capacity (L-1A) or who possess specialized knowledge of the foreign company's operations (L-1B).

Additionally, there is an O-1 visa that may be appropriate for a foreign worker who is particularly accomplished or talented in his/her field. While this visa is usually obtained by athletes, artists, and doctors, other types of professionals may qualify for it as well.

Moreover, there is also the R-1 visa which is reserved for a foreign worker who will be employed in a religious occupation, such as a priest, preacher, or missionary. The sponsor of the R-1 visa should be a religious organization.

Furthermore, there is the TN visa which is a special employment visa reserved for Mexican and Canadian citizens who will be employed in the U.S. in specific pre-approved occupations. And there is the E-3 visa which is a special employment visa reserved for Australian nationals (but this visa has its own cap of 10,500 every year).

One of the benefits of all of these visas is that the visa holder's spouse and unmarried children who are under the age of 21 may accompany the visa holder to the U.S. as dependents.

The failure to obtain an H-1B visa due to the H-1B cap has absolutely no bearing on a subsequent visa application. If you or your prospective employee were unable to secure the H-1B visa, there may be other employment visa options available. Call our office at 650-293-0270 to speak to a member of our legal team about possible alternative strategies to obtaining work authorization in the United States.

Additional Blog Posts

USCIS Announces Provisional I-601 Waiver, Silicon Valley Immigration Lawyer Blog, January 16, 2013
New Obama Directive to Aid Parents in Deportation Proceedings, Silicon Valley Immigration Lawyer Blog, August 13, 2013

H-1B Visas / by Michelle Gee