By Iosif Sorokin, Larson • King, LLP
On April 11, the Immigration Service announced that it received 201,011 H-1B petitions during the filing period from April 1-5, 2019. This number far exceeded the congressionally mandated cap of 85,000 new H-1B petitions available for the federal fiscal year 2020. As a result, the Immigration Service completed a lottery to select the H-1B petitions that it will process for employment authorization beginning October 1, 2019, and rejected the other 116,000 petitions. These rejected petitions represent a major hurdle for the employers trying to obtain work authorization for 116,000 highly skilled foreign professionals who fill critical gaps in their workforces. While in many cases little can be done except to try your luck again in the next lottery on April 1, 2020, some employers and professionals may have other options available to them. Three of these alternatives to the H-1B cap are discussed below.
Alternative 1: Employment with a cap-exempt employer
Cap-exempt employers are primarily universities and their affiliated non-profit organizations, as well as non-profit research organizations. These employers do not need to use the H-1B lottery process described above and instead may apply for H-1B status for employees at any time.
Employers who are subject to the cap can take advantage of this by hiring these employees part-time. For example, an IT company could hire a computer scientist currently working at a university in H-1B status for a part-time position at their company without having to go through the cap.
Similarly, a cap-subject employer can place an employee at a cap-exempt entity full time without going through the cap. For example, a physician staffing company could place its physicians at a non-profit university hospital full time, without having to go through the cap.
Alternative 2: Special immigration provisions
There are several one-off provisions in our immigration law that provide for employment authorization for certain employees without having to go through the H-1B cap. For example, employers hiring extraordinarily skilled and accomplished employees with lengthy CVs can use the O-1 visa to get employment authorization for these employees.
Special provisions based on international treaties also exist for employer to hire citizens of Canada, Mexico, Australia, Chile, and Singapore to work in professional positions.
Alternative 3: Skip directly to green card
Finally, an employer can choose to bypass the H-1B cap entirely by sponsoring an employee for permanent employment authorization (a “green card”). This process takes longer and requires greater buy in from the employer, but avoids the uncertainty of the lottery system. Unfortunately this alternative will not work for employees born in India or China, because they face such long wait times to receive their green cards.
The list above is not meant to be exhaustive as other short term alternatives to H-1B employment authorization exist (such as a STEM OPT extension for employees who recently graduated from a university program). But this list represents some potential alternatives for employers and professionals looking at ways to obtain work authorization for their employees.