AS early as April 7, 2015, the USCIS announced that the statutory cap for the fiscal year (FY) 2016 of 65,000 H-1B visa applications for the general category and 20,000 under the advanced degree exemption have been reached. As you may be aware, the H-1B visa program allows US employers to temporarily hire alien workers in specialty occupations (or those “requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor” as defined under applicable law). However, there is a limit of 65,000 visa applications for the general category and 20,000 for the advance degree exemption per fiscal year.
For employers and alien workers alike who were not able to avail of the H-1B visa program for the fiscal year 2016, they can consider some of the following alternative options:
• Cap-exempt H-1B applications for current H-1B workers: As a general rule, the H-1B cap refers to new H-1B applications for alien workers that have not been counted against the H-1B cap for the last six years. Thus, any petition, whether for amended petitions, extensions, or change of employer, for current H-1B workers who have previously been counted against the cap and who still retain the cap, will be processed and accepted by the USCIS, regardless of whether the cap for the current fiscal year has been reached.
• Cap-exempt new H-1B applications: There are specific employers not subject to the H-1B cap, to wit: Four types of employers are not subject to the H-1B cap: (a) institutions of higher education, (b) nonprofit entities related to or affiliated with institutions of higher education, (c) nonprofit or US governmental research organizations, and (d) organizations that require the H-1B employee to work at one of the first three categories of employers.
• Other Non-immigrant work visas. Depending on the qualifications of the alien and needs of the US employer, there are other non-immigration work visas available such as E-1 (treaty traders), E-2 (treaty investors), L-1 (intercompany transfers), O-1 (outstanding workers in the sciences, arts, athletics, education, or business), etc.
• Employment-based immigrant visa application. The alien worker may consider an employment-based immigration visa application if he is qualified.
If you are contemplating of filing any other immigrant or non-immigration application, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.
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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.
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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
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