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Alternatives for H-1B Visa Cap

visconWithin the first 5 days of April 2017 U.S. Citizenship & Immigration Services (USCIS) announced that it reached the annual 85,000 H-1B visa cap. Although, USCIS did not make the number of applications received public, the computer generated lottery to select petitions to process will continue. Those applicants selected and approved can begin working for their U.S. employer under the H-1B Visa on October 1, 2017.The Trump administration is making many changes to the immigration laws in order to put American workers first. In a news release that USCIS issued on April 3, 2017 they announced that, “The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS”. They also mentioned site visits across the country to worksites of H-1B employees. Most of the USCIS site visits will occur in cases where, USCIS cannot validate the employer’s basic business information through commercially available data; H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and employers petitioning for H-1B workers who work off-site at another company or organization’s location.Since the H-1B window has closed for employers and foreign nationals seeking to apply in 2017, there are alternative Visa options. The following Visas have no cap and are available throughout the year.
  • EB-1 Visa: For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor.
  • L-1 Visa: For intracompany transferees who have worked for a foreign entity for one year and are seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity
  • TN Visa: For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment. Examples of qualifying TN professional occupations include, but are not limited to Engineer, Accountant, Architect, Computer Systems Analyst, Geologist, Geophysicist, Graphic Designer, Management Consultant, Scientific Technician, Engineering Technicians, and many occupations in the medical and allied health field.
  • H-3 Visa: For foreign nationals coming to the U.S. to engage in a course of training.
  • E-3 Visa: For Australian citizens who will be employed in a specialty occupation in the U.S. (similar requirements to the H-1B visa).
  • E-1/E-2 Visa: For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested. The E-1/E-2 visa is a great option for foreign entrepreneurs seeking to work in an essential capacity for their U.S. entity.
My law firm does many self-sponsored EB-1 green card cases for petroleum engineers and others upstream and downstream in the oil and gas business. This has become an effective way to get a green card in an environment where the employers will not sponsor their workers for a green card.About the author: Bruce Coane is an attorney who specializes in labor and employment law and immigration law, with offices in Florida and Texas. He may be reached at [email protected], 713-850-0066 or 305-538-6800.  

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