2.26.13

For a printer-friendly copy of this Immigration Dispatch, click here.

There is an annual limit on the number of H-1B visas that can be issued each fiscal year to persons subject to the H-1B cap (primarily first-time H-1B beneficiaries) – approximately 65,000 in the general category and 20,000 limited to persons with U.S. master's or more-advanced degrees.

On April 1, 2013, the U.S. Citizenship and Immigration Service will begin accepting H-1B Petition filings for the 2014 Fiscal Year (which begins October 1, 2013). We recommend that H-1B cap-subject petitions for fiscal year 2014 be filed as close to April 1, 2013 as possible because all indications are that H-1B numbers, as in pre-recession years, could be exhausted in the first week of April or soon thereafter.

Exceptions to the H-1B cap

The H-1B cap does not apply to the following:

• Persons who are or who have been in H-1B status within the last six years;

• Petitions for exempt organizations – institutions of higher education, or a related or affiliated nonprofit entity, nonprofit research organization or governmental research organization; or

• J-1 nonimmigrant physicians who are changing status to H-1B and who have obtained waivers of the two-year return home residency requirement through the Conrad 30 Program (the physician agrees to work in a medically-underserved area).

Alternatives to the H-1B

If the H-1B option is not available, employers may want to consider these alternatives:

• As a prelude to filing for H-1B, optional practical training for foreign graduates of U.S. colleges and universities who may be eligible for a year of employment (or up to 29 months for students in Science, Technology, Engineering and Math fields) after USCIS approval of an Application for Employment Authorization.

• TN visas under the North American Free Trade Agreement for Canadian and Mexican professionals.

• L-1 visa for intracompany transferees. If an employer has foreign operations (or decides to create them), this visa permits employees to transfer to the U.S.-affiliated company in a similar position if he has worked abroad for the foreign parent, subsidiary or affiliate continuously for at least one year (six months where a Blanket L-1 Petition is being filed) within the preceding three years as an executive, manager or in a specialized knowledge capacity.

• E visa classification for treaty traders and investors if the L-1 visa is not available.

• J-1 exchange visitor classification for business trainees, experts, scholars and others.

• O-1 visas for individuals with extraordinary ability. Although the standards vary somewhat depending on the type of employment, generally speaking, the O-1 visa applies to those recognized as being in the top or near the top of their field of endeavor.

If you have any questions, please contact any member of Constangy's Immigration Law Practice Group, or the Constangy attorney of your choice.

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About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.

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