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How to Avoid the H-1B Cap Trap

by Carl Shusterman

With the 65,000 H-1B cap reached at the beginning of April, and 20,000 H-1B cap for those with advance degrees from U.S. universities about to be reached, are their any alternatives for those caught in the "cap trap"?

Yes, there are a lot of ways to remain and work in the U.S. for those who take the time to examine the possibilities:

A. Are you exempt from the H-1B caps?

The answer is yes if you work "for" or "at" (1) an institution of higher education or a related or affiliated non-profit entity; (2) a non-profit research organization; or (3) a government research organization.

Persons who are extending their H-1B status, changing employers or recapturing any H-1B time spent outside the U.S. are also exempt from the numerical caps. So are physicians with J waivers. While some H-1B workers are subject to the law's six-year maximum duration, persons who had/have a labor certification, a PERM application or an immigrant visa petition which was pending in excess of one year may extend their H-1B status beyond the general six year limit. The same is true of persons who cannot adjust their status solely due to per-country quotas.

B. What is your country of citizenship?

If you are a citizen of Canada or Mexico, think "Trade NAFTA" or "TN". If you engage in any of the 63 listed occupations, you may be eligible to work in the U.S. in TN status, and there is no cap on TNs!

If you are a citizen of Chile or Singapore, the U.S. has Free Trade Agreements with both of these countries, and there are plenty of H-1B1 visas remaining.

Finally, if you are an Australian citizen, think E-3, the Aussie equivalent of an H-1B.

C. Are you eligible for another type of temporary work visa?

Some potential H-1B's may also be eligible for other types of temporary visas including E-1, E-2, J-1, L-1A, L-1B, O-1 or even R or Q status. You may also be eligible for a "B-1 in lieu of H-1B visa".

D. Can you qualify for an EAD?

Consider the fact that the employment-based first-preference (EB-1) category is "current". So is the EB-2 category (unless you were born in India or mainland China).

EB-1s are exempt from the PERM and labor certification requirements. If you are eligible under EB-1, submit your I-140, I-485 and I-765 simultaneously. You will obtain a work permit (EAD) within 90 days.

Some EB-2s are also exempt from PERM or labor certification. This is true if you are qualified for a National Interest Waiver. To see if you are eligible for EB-1 or EB-2.

E. You may also be able to adjust your status based on a bona fide marriage to a U.S. citizen, an approved EB-5 investor petition or if you are one of the 50,000 winners of the diversity visa lottery program.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.