INTRODUCTION
Last year, at about this time, the USCIS announced that it has received 172,500 H-1B petitions for the fiscal year 2015 which began on October 1st, 2014. The H-1B lottery (also referred as “random selection process “) is likely to be conducted again this year and, in a few weeks, the USCIS will begin to send out H-1B receipt notices.
With uncertainty looming large as to who may or may not “win the lottery” or who may or may not cross the ‘threshold’ hurdle of H-1B visas, it is time that H-1B visa hopefuls (and their prospective H-1B employers) start to explore other nonimmigrant work visa options to allow them to work and live in the United States on a temporary basis.
This article is timely in nature and it seeks to capture and present some of the possible nonimmigrant work visa options that may be available to prospective H-1B visa beneficiaries who do not “win the H-1B lottery” this fiscal year and who do not get counted toward the 2016 Fiscal Year H-1B cap.
DID YOU CONSIDER THE CAP-EXEMPT H-1B VISA OPTION?
There are certain categories of cap-exempt H-1B visas. One such category is for foreign nationals having (or hoping to have) an employment offer from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization.
To be classified as cap-exempt, it not mandatory that prospective H-1B employee should be employed by the institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. A prospective H-1B employee, employed by any employer, who will perform the majority of his/her work at the qualifying institutions, could qualify for the cap-exempt H-1B visa provided the work performed should “predominantly further” the “normal, primary, or essential purpose” of the qualifying institution.
To illustrate, consider the case of an Information Technology (IT) company having a contract with a U.S university for hiring and placing IT consultants for developing/customizing university software. Assuming that IT consultants hired by the consulting company will primarily work developing/customizing university’ software and that the work will benefit the university in reaching one of its stated primary or essential goals; such employees may be treated as H-1B cap-exempt even though they will not be employed directly by the university.
A thorough review of the Memorandum promulgated by the USCIS that deals with cap exempt H-1B opportunities reflects a great deal of flexibility. Furthermore, a thorough analysis needs to be undertaken to ensure that the employer is or is not cap-exempt. On several occasions, over the past several years, immigration attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group have been extremely successful in obtaining cap-exempt H-1B visas for their clients.
CONSIDER OTHER PROFESSIONAL AND SPECIALTY OCCUPATION WORK VISACLASSIFICATIONS: TN, H-1B1 AND E-3 VISAS.
There are three nonimmigrant visa categories quite similar to H-1B visas that are designated for temp