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Don Your Thinking Cap: Employer Options When the H-1B Cap is Reached
Practical Law Legal Update w-001-8775 (Approx. 4 pages)
Don Your Thinking Cap: Employer Options When the H-1B Cap is Reached
by Practical Law Labor & Employment
| Published on 11 Apr 2016 • USA (National/Federal) |
Resources for employers impacted by the exhaustion of the H-1B cap. These resources address who is subject to the cap, alternative visa classifications for employees who require immigration sponsorship to work in the US, and advanced planning for immigration sponsorship.
Employers that sponsor foreign workers in the H-1B nonimmigrant visa classification once again find that access to new H-1Bs is severely limited by the H-1B cap (see Legal Update, USCIS Exhausts the Statutory Cap for FY2017). During the five-business-day filing period that ran from April 1 through April 7 for new H-1Bs that will take effect on or after October 1, 2016, United States Citizenship and Immigration Services (USCIS) received more than enough petitions to fill the available 85,000 slots. While it is too early to determine if the filings surpassed last year's record 233,000 petitions, this is the fourth consecutive year the cap has been exhausted during the initial filing period. The 85,000 petitions now will be selected through a random lottery, making employers' hiring plans something like a game of chance.
Employers should plan carefully and consider all of their options for affected employees or candidates. Practical Law has many resources to help employers faced with the limited availability of H-1Bs. These resources address issues such as whether:
- An employee or prospective employee is subject to the H-1B cap. If not, the employer may still use the H-1B category. For more information on the H-1B cap, including who is not subject to the cap, see Practice Note, The H-1B Nonimmigrant Visa Classification: The H-1B Cap.
- The employee qualifies for an alternative nonimmigrant visa classification. For more information on nonimmigrant visa classifications, see:
- The employee qualifies for an immigrant visa (green card) classification (see Key Immigrant Visa Classifications Chart).
- The employee qualifies for a transfer or secondment to another part of the employer's enterprise, either in the US or abroad. For more information, see:
- The employer must or wishes to terminate the employee (see Practice Note, Employee Termination: Best Practices and Terminating a Sponsored Foreign Worker Checklist).
Employers that hire and sponsor foreign workers for immigration benefits should have a well-defined policy and plan for immigration sponsorship. Advance planning helps employers minimize the business impact of uncertainties in immigration processing, such as the limited availability of the H-1B nonimmigrant visa classification. Practical Law resources that may assist employers include: