Didn't Obtain an H-1B Visa During Cap Season? Here are Alternative Options for Employers
  • Relocation Today ImmigrationU.S. Citizenship and Immigration Services received 190,098 cap-subject H-1B petitions this year. That number was down 4.5 percent compared with last year's total, but still well above the H-1B cap of 65,000 visas plus the additional 20,000 for individuals holding a U.S. master's degree or higher. On top of that, President Donald Trump's administration has moved to tighten up the H-1B program, increasing the number of requests for evidence from H-1B applicants and saying it will require additional information from employers who assign H-1B workers to third-party worksites.


    As high demand and increased scrutiny continue to make obtaining an H-1B visa a challenging prospect, employers may consider alternatives for individuals who will not obtain an H-1B visa this cap season. Depending on workers' particular circumstances, the following alternative routes may be available for temporary foreign workers:

    • F-1 Optional Practical Training. Newly graduated foreign students may extend their F-1 student status through Optional Practical Training (OPT) if they seek to perform work directly related to their major area of study. A 2016 regulation allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to apply to extend their one-year OPT period for an additional 24 months.
    • J-1 exchange visitors. Companies may bring foreign students and graduates of foreign universities to the U.S. as trainees for up to 18 months or as interns for up to 12 months. One of the limitations to this visa category is that employers may not hire a J-1 visitor for a position that is filled or would be filled by a full-time or part-time employee. Exchange visitors also must prove their intent to return to their home country and in some cases must return to their home country for two years at the end of their J-1 status.
    • O-1 "extraordinary ability" visas. Individuals demonstrating extraordinary ability in business, science, education, art or athletics may qualify for an O-1 visa. This category requires evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.
    • L-1 intra-company transfers. The L-1 category allows companies with international offices to transfer employees in managerial or specialized knowledge positions from a foreign branch, affiliate, parent or subsidiary office to their U.S. offices. Only employees with at least one year of experience in the company's foreign operations in the last three years are eligible. Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and applying for L-1 status thereafter. L-1B visas for individuals with "specialized knowledge" are valid for up to five years, while L-1A visas for managerial workers are valid for seven years. Companies should anticipate tightening of rules on L visas, including greater oversight. Last year, the USCIS appeals panel ruled that companies whose L-1B employees remain on foreign payroll must meet  U.S. minimum-wage requirements under both federal and state laws. Companies are encouraged to consult with their BAL professional for advice on individual cases.
    • Country-specific nonimmigrant visas. Under bilateral agreements, certain nationalities are eligible for temporary nonimmigrant visas. These include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens, and TN classification for citizens of Canada and Mexico in designated professional categories under the North American Free Trade Agreement. The Trump administration is working to renegotiate NAFTA with Canada and Mexico, and Trump has signaled that he may withdraw from the agreement if he is unable to achieve his goals in negotiations. For now, however, TN visas remain an option.
    • "BILOH." The B-1 in lieu of H-1B, or BILOH, is an option in limited circumstances. The B-1 is a visitor visa and the BILOH is being closely scrutinized for misuse, so companies should consult with their BAL attorney before considering this route.

    This post has been provided by Berry Appleman & Leiden (BAL) Corporate Immigration. For more information please contact: Kristie Paulsen at Relocation Today  or Jennifer Fisher at BAL

    About Berry Appleman & Leiden LLP
    Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from seventeen offices across the U.S. and Globe. BAL manages global visa matters and customized application approaches for work permits, business visas, and residence permits in more than 100 countries. With a single cost center for worldwide operations, BAL offers centralized management with regional and local support for the complete spectrum of global immigration matters.

    Source: Berry Appleman & Leiden LLP
    Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.

    About Relocation Today: Relocation Today, Inc. has been joyfully developing and serving corporate clients global relocation needs, supporting recruiting efforts & managing summer intern housing programs since 1994.  For more information on services or relocation benefits policy review please contact: Richard Rudeen, Business Development Manager RichardR@Relocation-Today.com 952.278.0530

Didn't Obtain an H-1B Visa During Cap Season? Here are Alternative Options for Employers
  • Relocation Today ImmigrationU.S. Citizenship and Immigration Services received 190,098 cap-subject H-1B petitions this year. That number was down 4.5 percent compared with last year's total, but still well above the H-1B cap of 65,000 visas plus the additional 20,000 for individuals holding a U.S. master's degree or higher. On top of that, President Donald Trump's administration has moved to tighten up the H-1B program, increasing the number of requests for evidence from H-1B applicants and saying it will require additional information from employers who assign H-1B workers to third-party worksites.


    As high demand and increased scrutiny continue to make obtaining an H-1B visa a challenging prospect, employers may consider alternatives for individuals who will not obtain an H-1B visa this cap season. Depending on workers' particular circumstances, the following alternative routes may be available for temporary foreign workers:

    • F-1 Optional Practical Training. Newly graduated foreign students may extend their F-1 student status through Optional Practical Training (OPT) if they seek to perform work directly related to their major area of study. A 2016 regulation allows F-1 student visa holders who have degrees in science, technology, engineering or mathematics (STEM) fields to apply to extend their one-year OPT period for an additional 24 months.
    • J-1 exchange visitors. Companies may bring foreign students and graduates of foreign universities to the U.S. as trainees for up to 18 months or as interns for up to 12 months. One of the limitations to this visa category is that employers may not hire a J-1 visitor for a position that is filled or would be filled by a full-time or part-time employee. Exchange visitors also must prove their intent to return to their home country and in some cases must return to their home country for two years at the end of their J-1 status.
    • O-1 "extraordinary ability" visas. Individuals demonstrating extraordinary ability in business, science, education, art or athletics may qualify for an O-1 visa. This category requires evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.
    • L-1 intra-company transfers. The L-1 category allows companies with international offices to transfer employees in managerial or specialized knowledge positions from a foreign branch, affiliate, parent or subsidiary office to their U.S. offices. Only employees with at least one year of experience in the company's foreign operations in the last three years are eligible. Some companies may consider longer-term strategies of employing select candidates in their overseas office for a year and applying for L-1 status thereafter. L-1B visas for individuals with "specialized knowledge" are valid for up to five years, while L-1A visas for managerial workers are valid for seven years. Companies should anticipate tightening of rules on L visas, including greater oversight. Last year, the USCIS appeals panel ruled that companies whose L-1B employees remain on foreign payroll must meet  U.S. minimum-wage requirements under both federal and state laws. Companies are encouraged to consult with their BAL professional for advice on individual cases.
    • Country-specific nonimmigrant visas. Under bilateral agreements, certain nationalities are eligible for temporary nonimmigrant visas. These include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens, and TN classification for citizens of Canada and Mexico in designated professional categories under the North American Free Trade Agreement. The Trump administration is working to renegotiate NAFTA with Canada and Mexico, and Trump has signaled that he may withdraw from the agreement if he is unable to achieve his goals in negotiations. For now, however, TN visas remain an option.
    • "BILOH." The B-1 in lieu of H-1B, or BILOH, is an option in limited circumstances. The B-1 is a visitor visa and the BILOH is being closely scrutinized for misuse, so companies should consult with their BAL attorney before considering this route.

    This post has been provided by Berry Appleman & Leiden (BAL) Corporate Immigration. For more information please contact: Kristie Paulsen at Relocation Today  or Jennifer Fisher at BAL

    About Berry Appleman & Leiden LLP
    Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from seventeen offices across the U.S. and Globe. BAL manages global visa matters and customized application approaches for work permits, business visas, and residence permits in more than 100 countries. With a single cost center for worldwide operations, BAL offers centralized management with regional and local support for the complete spectrum of global immigration matters.

    Source: Berry Appleman & Leiden LLP
    Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.

    About Relocation Today: Relocation Today, Inc. has been joyfully developing and serving corporate clients global relocation needs, supporting recruiting efforts & managing summer intern housing programs since 1994.  For more information on services or relocation benefits policy review please contact: Richard Rudeen, Business Development Manager RichardR@Relocation-Today.com 952.278.0530