The federal government announced on August 23 that it had reached the H-1B visa cap. This announcement has left some foreign national employees and employers uncertain about what to do in the immediate future.
Here are some options for employers whose foreign national employees missed the H-1B cap for FY 2023.
Foreign nationals who have worked full-time for a multi-national company for a minimum of one year during the last three years may be able to obtain an L-1 visa. However, the national must transfer to the United States to work for a related entity, and the position must be managerial or executive or require specialized knowledge.
Foreign nationals from specific countries that have treaties with the United States may be able to obtain an E-2, E-3, or TN visa. For example, citizens of Mexico or Canada who are professionals and want a job as an engineer, management consultant, accountant, or scientific technologist, among others, can obtain TN status to work in the United States. In addition, Australian citizens may obtain an E-3 visa allowing them to work in the U.S. in professional jobs similar to positions in the H-1B program. Furthermore, essential employees or managers from treaty countries working for a U.S. organization from the same country may prove eligible for E-2 classification.
Certain foreign nationals can apply for an employment authorization document (EAD). For example, employers can hire foreign nationals eligible for EADs through a student-based F-1 optional practical training or who are already working according to an EAD. Additionally, foreign nationals who graduated in science, technology, engineering, or math fields and working in a job related to their major may be eligible for a stem EAD before their current EAD expires.
Some foreign nationals may also obtain employment authorization through a spouse. However, the spouse must have a specific status in the United States, such as E-1, E-2, or L-1. Otherwise, the spouse must have an H-1B status and an approved Immigration Petition for Alien Worker (I-140). In addition, foreign nationals that are derivative or dependant beneficiaries of a family member’s I-485 application are also eligible for employment authorization while awaiting approval.
Another option for individuals who missed the H-1B cap is the O-1 visa. Foreign nationals qualify for this visa by having extraordinary ability in the arts, athletics, business, or education fields. Otherwise, exceptional television or motion picture industry achievements will also qualify. Though these visas do not have a cap, they are challenging to obtain. It requires a considerable amount of documentation that the USCIS carefully reviews.
More options include H-3 or J-1 intern/trainee visas. These visas encompass entry-level positions for individuals with considerable hands-on training in a structured training program. However, those interested in this option may find it necessary to prove that the training is unavailable in their home country. Furthermore, they must demonstrate how acquiring these skills in the U.S. will lead to work in their home country.
Finally, many solutions exist for foreign national employees who missed the H-1B lottery. Some are short-term solutions while employers and employees wait for the next lottery. In addition, there are long-term solutions that may prove more convenient and beneficial than waiting. Overall, the best solution is best determined on a case-by-case basis.
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