Ready to pull your hair out because H-1b hit 2011 cap? Don’t fret yet, some are exempted and others can use alternative visa options.

U.S. Citizenship and Immigration Services announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011.  USCIS is notifying the public that Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. 

Accordingly, USCIS will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.
• allow H-1b visas for employees of higher education or companies affiliated with higher education.

The first date an H-1b can be filed for the 2012 fiscal year which begins October 1, 2011, is April 1, 2011.

Other options for those with college degrees in professional jobs are as follows:

TN Visa for Canadian and Mexican professionals in more than 30 occupations.

E-3 professional visa for Australians

H-1b for Chile and Singapore citizens

L-1 A management and executive level transferees for companies with affiliated or subsidiary branches in US and at least one other nation.

L-1B specialized employee transfers for companies with affiliated or subsidiary branches in US and at least one other nation.

O-1 Extraordinary Ability employees in business, arts, athletics, science and education,

H-3 Training visa for up to 2 years

J-1 Training or Intern visa. Up to 18 months. Some are subject to 2 year home residency requirement for certain countries and certain professions.

E-2 Treaty Investor visa. Permits investor and essential employees from countries with treaties with United States to establish companies in US.

E-1 Treaty Trader visa. Permits establishment of trading companies with treaties with US.

Despite a recessed economy, US companies that require hiring from a global talent pool to compete have been hamstringed by an arbitrary numerical cap for professional workers. Until Congress passes legislation that increases the H-1B quota to meet the realities of our global economy, U.S. employers must seek other alternatives. The strategies discussed are only a few of many options available to employers. Now more than ever, it is critical for employers to start planning early with their immigration counsel to explore options specific to their needs and to ensure that the H-1B cap does not hinder their hiring goals and ability to supplement their workforce with professional foreign workers.

Feel free to contact me if you would like to explore your options.