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Planning for Rejected Fiscal Year 2015 H-1Bs

The U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions against the upcoming Fiscal Year 2015 H-1B quota on April 1, 2014.  This year’s H-1B season is expected to be similar to last year’s, during which the 85,000 “cap” on new H-1Bs was reached in the first week petitions were accepted. A total of 124,000 petitions were filed last year. The cap applies to individuals who have never held H-1B status or who previously worked only for an H-1B exempt employer. Employers should plan now for a possible 40-percent-rejection rate on their H-1B petitions.

Alternative visa options for affected employees include the following:

  • For Canadian and Mexican professionals, the TN visa available under the North American Free Trade Agreement.

  • For nationals of Australia, the E-3 visa.

  • For nationals of Chile or Singapore, the H-1B1 visa.

  • For intracompany transferees, the L-1 visa. An organization with foreign operations can transfer employees to its U.S.-affiliated company in a similar position under certain circumstances.

  • For individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify, the 17-month optional practical training (OPT) extension.

  • For individuals who may qualify under the extraordinary ability criteria, the O-1 visa.

  • For essential employees if the company and foreign national share the same nationality, the E-2 visa.

  • For individuals in F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training (CPT).

  • For individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent I-140/485 green card process and work authorization issuance.

  • For individuals whose employers have offices outside the United States, the individuals can be placed on the foreign payroll and work abroad until next year’s H-1B filing period or until another type of work visa becomes available.

  • For individuals entering a structured training program, the H-3 visa.

  • For individuals who can be categorized as an Exchange Visitor, the J-1 visa.

Every situation is different and your legal representative should be consulted to ensure you have an alternative plan should the H-1B petition filed on behalf of a foreign national employee be rejected.

Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 73

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About this Author

Of Counsel

Robert Neale is Of Counsel in the Seattle, Washington office of Jackson Lewis P.C.

Mr. Neale has extensive experience advising companies and individuals on the complexities of business immigration law, including securing temporary work permits, submission of permanent residence applications, I-9 compliance, U.S.-Canada cross-border matters and consular processing. He has successfully implemented comprehensive proactive compliance programs in a variety of industries.

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