The FY 2025 H-1B Cap Has Been Reached! Now What?

UB Greensfelder LLP

U.S. Citizenship and Immigration Services (USCIS) announced on April 1 that it has received enough electronic registrations during the initial registration period to reach the Fiscal Year (FY) 2025 H-1B cap. Applicants selected have been notified and must file their H-1B petitions by June 30, 2024. In previous years, USCIS has conducted subsequent selection periods, so there may still be further H-1B selections over the next several months; however, chances are remote for H-1B registration beneficiaries who have not already been selected to secure an FY 2025 H-1B allocation.

So, what is an employer in need of a top IT developer, engineer, physician, or other professional to do?

Here are some alternatives to the H-1B program that may provide certain companies and their prospective noncitizen professionals with a pathway to employment in the U.S.

Cap-Exempt H-1B Employment

H-1B employment for an employer who’s subject to the cap may still be possible even if the employee was not selected. An employee who works for an H-1B cap-exempt employer, such as a public university, may also work for a private employer who is subject to the H-1B cap. This is because the law does not count this employee against the cap unless the employee “ceases to be employed” by the cap-exempt employer. For example, a law firm seeking to hire an associate attorney under the H-1B program may employ the associate as an H-1B if the associate is concurrently employed in H-1B status, at least on a part-time basis, by a cap-exempt law school.

Extraordinary Ability

The O-1 visa is available for professionals who have extraordinary ability in the sciences, arts, education, business, or athletics. While the O-1 visa requires a high standard of proof, prospective employees who meet the eligibility requirements will be eligible to work regardless of the H-1B cap. Further, there are certain advantages to the O-1 visa as it does not carry with it many of the H-1B Department of Labor (DOL) regulatory requirements.

Nationality-Based Categories: Australia, Singapore, Chile, Canada, and Mexico

Australian professionals may be eligible for E-3 visas, which may be valid for up to two years and renewed indefinitely. An advantage to the E-3 visa is that the employee may apply for their visa directly at the U.S. consulate overseas without the employer needing to obtain an approved petition in the U.S., and, although there’s an annual cap of 10,500, it is rarely (if ever) reached. However, DOL regulatory requirements apply.

H-1B1s are similar to both H-1Bs and E-3s and are available to citizens of Singapore and Chile. Like the E-3, a petition is not required and there are DOL regulatory requirements. While there are annual caps of 5,400 for Singapore and 1,400 for Chile, these have never been reached. H-1B1 visas may be issued for up to 18 months and are renewable.

Canadian and Mexican citizens who are in one of 63 enumerated professions may qualify for TN status. Canadians may apply for TN status on entry to the U.S., and Mexicans must apply at a U.S. consular post following approval of a petition filed by a U.S. employer. TNs may be granted for three years at a time and renewed indefinitely.

Longer-Term Options

If there are no immediate options to employ a candidate in the U.S., there may be longer-term options available, such as training programs, transfers to related entities abroad, or joint ventures. In many cases, these arrangements can set up longer-term options for the employee to work in the U.S.

UB Greensfelder’s Immigration Law Group is closely monitoring these developments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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