On April 12, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the congressionally mandated H-1B cap for fiscal year (FY) 2018-2019. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.
USCIS received over 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. On April 12, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.
With uncertainty looming large as to who may or may not get selected in the H-1B lottery, 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 may NOT be selected in the H-1B visa lottery this fiscal year. This is Part I of the two part Article.
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 a 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’s software. Assuming that IT consultants hired by the consulting company will primarily work developing/customizing the university’s 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 some flexibility. Furthermore, a thorough analysis needs to be undertaken to ensure whether the employer is or is not cap-exempt.
CONSIDER OTHER PROFESSIONAL AND SPECIALTY OCCUPATION WORK VISA CLASSIFICATIONS: TN, H-1B1 AND E-3 VISAS.
There are three nonimmigrant visa categories quite similar to H-1B visas that are designated for temporary professional workers from specific countries. These visas are based upon specific trade agreements that foreign nations have signed with the United States.
The ‘H-1B1′ visa program is designed specifically for the nationals of Chile and Singapore. Up to 6,800 visas (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore) are set aside from the H-1B cap of 65,000 during each fiscal year for the H-1B1 program.
Additionally, the Canadian and Mexican temporary professional workers may explore the potentia