The H-1 Cap has been reached | Immigration Alert

The USCIS has announced that the H-1 cap has been reached. The USCIS' press release says that about 150,000 H-1(b) filings were made on April 2, the first day that H-1(b)'s were accepted for filing. In accord with regulation, USCIS will subject H-1B petitions received on April 2 to a computer-generated random selection process. Employers should expect that only about one out of every three filed cases will be approvable.

There are several options available for cases that were shut-out as a result of the H-1(b) cap.

- If the Beneficiary for employment is a graduate of a US Masters degree (or higher) program, the case may still be filed. There is a separate category for these candidates. You can monitor the progress of this quota on the USCIS' web site, here:

USCIS H-1 Quota Web Page

- Chilean and Singaporean nationals have 6,800 visas set aside during the fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. In the past, this quota has never been reached.

- Certain non-profit research organizations and higher education institutions are exempt from the general and Masters H-1(b) quotas.

- Canadian nationals may be petitioned under the TN visa classification provided by the NAFTA agreements. There is no annual quota on TN cases. There is a discrete list of TN occupations that are eligible, which can be found here:

TN Occupations Listing

- Australian nationals may be eligible for the E-3 visa, which is generally eligible to all Australians who would otherwise qualify for an H-1(b).

- Physical Therapists may find it quicker to apply for a Permanent Residency visa (green card), than to wait for the H-1(b) quota to come back on-line. Similarly, Extraordinary-Ability Workers, Outstanding Researchers and persons whose work is in the National Interest all qualify for expedited Permanent Residency.

- Many other visa categories - e.g. E, L, and O - do not have annual quotas. These may be available options. You can learn about these categories here: http://www.hammondlawfirm.com/business_visas_main.htm

Employers also should note that "cap-subject" H-1(b) visas are only those cases for new hires, who have never previously held H-1(b) petitions. For instance, students, off shore hires, and those wishing to change from another visa classification are subject to the quota. "Company transfer" H-1(b) visas are NOT subject to the cap.