USCIS has announced that as of May 2, 2016, it has completed all data entry for H-1B cap petitions selected in the “lottery” for consideration in the FY2017 cap. We expect that all receipt notices for selected petitions will be received within the next seven to 10 days. USCIS also will now return all petitions that were not selected, a process that will take several weeks.

​Although no new H-1B hires may be made, employers may be able to take advantage of other visa categories, as follows:

• B-1 - The B-1 category allows a foreign national to enter the United States to participate in business activities on behalf of a foreign employer.  Generally, a person in B-1 status may not engage in productive employment in the United States.  Allowable B-1 activities include consulting/meeting with business associates, attending a professional conference, participating in training, or negotiating contracts.  The “B-1 in lieu of H-1” might be used where the foreign national would qualify for H-1B status, but their employer is not based in the U.S. and they are coming to the U.S. for a short period of time.  This type of B-1 status does permit productive work in the U.S., but the person must be employed by and continue to be paid by the overseas employer.
• E-3 - The E-3 category is limited to nationals of Australia and is capped at 10,500 per fiscal year, although that quota has never been filled.  The substantive requirements of the E-3 are very similar to H-1B category.  There must be an offer of employment in a “specialty occupation” and the individual must possess a bachelor’s degree or the equivalent in a field related to the employment.
• TN - The North American Free Trade Agreement (NAFTA) between the U.S., Canada, and Mexico allows for simplified immigration travel between and among the three countries.  For purposes of employment in the U.S., citizens of Canada and Mexico who are coming to the U.S. to work in certain professions may be eligible to enter in TN status.  To qualify for TN status, the foreign national must be a citizen of Canada or Mexico, must have a prearranged offer of employment in the U.S., and must meet the educational/experience qualifications for the occupation, which are also specifically set forth in the NAFTA regulations.  In addition, NAFTA limits TN status to individuals working in one of a specifically enumerated list of occupations.
• E-1 / E-2 - The E-1/E-2 categories require that the person be a national of a country with which the U.S. has an appropriate treaty of commerce and that the prospective employer is majority owned by nationals of that same treaty country or by corporate entities having the “nationality” of the treaty country.  These owners/corporate entities must either have made a “substantial” investment in the U.S. or there must be “substantial” trade between the U.S. and the treaty country.  In addition, the offered position must be executive or supervisory, or involve “essential skills.”
• F-1 - The F-1 student visa category permits employment under various circumstances, most commonly through Curricular Practical Training (CPT) or Optional Practical Training (OPT). There is a 12-month limit on OPT unless the person has a designated STEM (Science, Technology, Engineering, or Mathematics) degree and the employer participates in the e-Verify employment verification program, in which case an additional 29 months of post-graduation OPT is available.
• L-1 - The L-1 visa category allows U.S. employers to transfer employees of related overseas entities to work temporarily in the U.S.  The U.S. and foreign entities must have a corporate relationship sufficient to support L-1 status, the employee to be transferred must have worked for the related employer overseas for at least one year, and the offered position must be managerial/executive or must involve “specialized knowledge.”
• O-1 - The O-1 category is available for persons of extraordinary ability who can document sustained national or international acclaim in their field.

Finally, there are various visa categories available for training that might be useful in certain circumstances.

As always, please contact us with any questions.

On April 1, 2015, employers may begin filing fiscal year 2016 H-1B visa petitions for individuals to begin H-1B employment on October 1, 2015. Congress places a cap of roughly 65,000 on the number of new H-1B’s available each year. There is also a separate cap of 20,000 initial H-1B’s available for individuals who have a master’s degree or higher from a U.S. college or university.

Generally, any petition for an individual who is currently in H-1B status or has held H-1B status within the past six years is not subject to the cap, although there are some rare exceptions. In addition, certain types of employers are exempt from the H-1B cap, such as non-profit research organizations and non-profit entities that are affiliated with a U.S. college or university.

In each of the past few years, USCIS received enough petitions to exceed these caps within the first week. Considering the improved economy and the fact that last year’s cap was reached on April 7 creating a significant pent up demand, we expect that the cap will again be reached during the initial filing period. Therefore, employers must identify any individuals for whom they might want to obtain H-1B status and file those petitions as early as possible for the best chance at getting one of the available visas. This is particularly critical for any recent graduates who are currently working pursuant to Optional Practical Training (OPT), and for employees who might be nearing the maximum limit on their current status, such as R-1 religious workers or L-1 intracompany transferees.

If you are an employer or potential employee and you have questions about the H-1B cap or the H-1B visa category, please contact us.