H-1B visas are the most popular employment-based visa for professional workers. Despite the program’s popularity and proven success in bringing educated professional workers to the U.S., it is subject to a cap of 65,000 per fiscal year. An additional 20,000 are reserved for individuals holding a master’s degree or higher from a U.S. institution.  

In the past, H-1B visa numbers ran out very quickly. In 2008, the H-1B numbers for fiscal year 2009 (beginning in October 2008) were hit on the first day they became available. The economic recession that began in the fall of 2008 affected the hiring of foreign workers and, for a few years, the cap was not hit until well into the fiscal year. This past year, however, the economic situation improved and the H-1B cap for fiscal year 2013 was hit on June 11, 2012. That means that the earliest an employer can hire an individual in H-1B status is for a start date of October 1, 2013.

There are alternatives to H-1B visas for employers who have missed the 2012 cap. Employers that want to hire a qualified foreign national should consider exploring the alternatives discussed below before deciding that the person cannot be hired because H-1B visas are no longer available. 

H-1B Porting

If an individual is already in H-1B status, then he or she has already been counted against a previous cap and can now “port” to another employer without being subject to the cap. This only works if the individual is not porting from a cap-exempt employer (an institution of higher education, a not-for-profit entity related or affiliated to an institution of higher education, or a not-for-profit research organization or a governmental research organization). Additionally, employers should inquire how many years the individual has already been in H-1B status. Typically, there is a six-year limit for an individual to be in the U.S. in H-1B status. 

Optional Practical Training (OPT)

Students are given a year after graduation to work with “optional practical training.” This time can be extended by the “cap gap” legislation if they miss the H-1B cut off. Furthermore, if a student’s degree is science-, technology-, engineering- or mathematics-related (STEM-related), and the employer is an E-Verify employer, the student’s OPT is extended by an additional 17 months. Therefore, STEM-OPT students have a total of 29 months to work after graduation without requiring a visa.

TN, L-1s, and O-1s

If the employee is a Canadian or Mexican professional, a NAFTA Professional TN visa may be appropriate. If the employee is transferring for a short time from an affiliated company abroad, an L-1 visa may be used. If the employee is an “extraordinary” employee that has had many achievements in his or her field of expertise, an O-1 visa may work for that employee. The O-1 visa can be especially helpful for researchers and other positions requiring particularly highly qualified individuals.

Short-Term Visas: J-1, H-3, and B-1 Business Visitor

If the employee cannot port an H-1B, is not a student with OPT and there is no appropriate visa categories, then a short-term nonimmigrant visa option may be viable. The Foreign Affairs Manual allows for a B-1 to be issued in lieu of an H-1B. There are many restrictions on this category. Most notably, the individual cannot receive a salary or any other remuneration from a U.S. source. The remuneration or income for services must be provided by the business entity located abroad. Alternatively, depending on the skill level of the employee, the employer can initiate a Trainee or Intern Program and utilize the J-1 program or even an H-3 Trainee program. The Department of State is currently revising its policy on the use of B-1 in lieu of H-1B, so this program may be changing soon.

In short, while it can be difficult, and sometimes requires flexibility and creativity, it is possible for employers to bring in desirable foreign national workers after the H-1B cap has been reached.