FISCAL YEAR (FY) 2014 H‐1B CAP REACHED
On Friday, April 5, 2013, U.S. Citizenship & Immigration Services (CIS) announced that the 2014 Fiscal Year (Oct. 1, 2013 – Sept. 30, 2014) H-1B cap quota had been reached. They had received enough H‐1B petitions to exhaust the quota, including the 20,000 for U.S. advanced degree holders. The H‐1B visa quota for each fiscal year is 65,000. Out of these, some H‐1B visa numbers are set aside specifically for citizens of Chile and Singapore. An additional 20,000 H‐1B numbers are available for candidates who hold at least a Master's Degree or higher from a U.S. institution of higher education.
This means that no new cap‐subject H‐1B petitions may be filed until NEXT YEAR, beginning on April 1, 2014, with a requested H‐1B employment start date of Oct. 1, 2014. Cap‐subject H‐1B petitions received after April 5, 2013, will be rejected and returned with the CIS filing fees.
THE LOTTERY: CIS will apply a random "lottery" process to select which H-1Bs they will process, for those petitions received between April 1st and April 5th, inclusive. They will announce in approximately 2 weeks which petitions have been selected under the lottery. The lottery will be applied first to the U.S. Master's Cap cases (those beneficiary's with U.S. Master's degree or higher, for which 20,000 are granted). Cases not awarded a Master's cap will then be entered into the lottery for regular H‐1B cap cases.
CAP EXEMPT Categories of H‐1B Petitions
The following types of H‐1Bs are not subject to the annual H‐1B cap, and may continue to be filed without numerical limitation:
1. CHANGE OF EMPLOYER H‐1B petitions for candidates counted under a previous year's H‐1B cap who currently hold H‐1B status and are seeking a change of employer
2. PREVIOUS H-1B VISA HOLDERS: H‐1B Petitions on behalf of candidates who were previously granted H‐1B status in the past six years and did not exhaust the full 6 years of their original H-1B stay in the U.S.
3. EXTENSIONS: for existing H‐1B employees
4. HIGHER EDUCATION/NON-PROFIT ORGANIZATIONS/GOVERNMENTAL RESEARCH ORGANIZATIONS: H‐1B Petitions on behalf of employees of institutions of higher education, Nonprofit Organizations affiliated with institutions of higher education, Nonprofit Research Organizations or Governmental Research Organizations
5. CHILE/SINGAPORE: H‐1B visa numbers also remain available for citizens of Chile and Singapore, pursuant to trade agreements that set aside H‐1B numbers under each year's quota.
For more information on a potential H‐1B cap exemption, please contact Youn Law Group (YLG). If you are unsure whether a particular organization may meet the requirements for H‐1B cap exemption, or wish to explore how it may qualify in the future, YLG can assist you in evaluating the affiliations and preparing the arguments on behalf of your organization.
Some candidates for H‐1B classification potentially qualify under one or more alternative nonimmigrant visas. The following classifications remain available:
1. The TN visa category is an appropriate alternative for Canadian and Mexican citizens seeking work visas in certain professional categories in accordance with the North American Free Trade Agreement (NAFTA). The NAFTA list of professional classifications includes, but is not limited to: Engineer, Accountant, Architect, Computer Systems Analyst, Graphic Designer, Management Consultant, Scientific Technician/Technologist including Engineering Technicians), and various occupations in the medical and allied health professions.
2. The E‐3 visa category is available for Australian citizens who will be employed in the United States in a specialty occupation. The requirements for this category are similar to those for the H‐1B category.
3. The L‐1 visa category is for international transferees who have worked with a company abroad for at least a year and are being transferred to the U.S. to continue working with a U.S. affiliate, parent, subsidiary, or branch office of the company. Employment must have been and must continue to be in a managerial, executive, or specialized knowledge capacity.
4. The E‐1 and E‐2 Treaty Trader and Treaty Investor visa categories may be used for employing qualified personnel with U.S. companies where the company's ownership is from country that has been approved as an E-1/E-2 treaty trader. Generally, the prospective employee must be coming to engage in employment with the company as a managerial, executive, or essential employee with the company in order to qualify.
5. The H‐3 visa category may be used for the temporary training of qualified foreign nationals in the United States pursuant to a detailed, established training program. The H-3 visa is also subject to a quota, but has not been reached.
6. The O‐1 Alien of Extraordinary Ability visa category would be an appropriate alternative for those individuals who have reached the pinnacle of their fields of endeavor and have sustained national or international acclaim for their extraordinary achievements.
7. The B-1 business visa category: Under very limited, short‐term circumstances in which a foreign national will remain on a foreign payroll and meet other strict criteria when coming to the United States, the B‐1 visa may be an appropriate option in lieu of the H‐1B visa. YLG can assist you in determining whether the B‐1 visa may be an appropriate alternative in particular cases.
In limited cases, a company may sponsor an employee directly for permanent residency, and this alternative could be considered for individuals who meet established criteria and are classifiable under an employment‐based immigrant visa category for which immigrant visa numbers are readily available under the annual quota system for immigrant visas.
For more information regarding these potential alternatives to H‐1B visas, please contact the Youn Law Group. We are happy to assist you in determining whether a beneficiary may qualify under an alternative visa classification, and can assist you in developing an appropriate case strategy for collecting the information and documentation required to proceed.