H1B Cap: Other Options after the Visas Run Out

1145535_3d_maze_5.jpgOptional practical training (OPT), cap gap, and STEM
After college graduation, foreign national students are permitted to work for one year with optional practical training (OPT). If you are a student in OPT and you miss the H1B cutoff date and no more H1B visa numbers are available for the fiscal year, your OPT time may be extended by what is known as the “cap gap.” In addition, if you have a degree related to science, technology, engineering, or mathematics, (STEM) and you are working for an E-Verify employer, an additional 17 months is added to your OPT time. This gives the STEM-OPT student a total of 29 months of work authorization after graduation.

H1B porting under AC21
H1B portability applies in situations where an H1B employee switches from one employer to another. If you already have H1B status, and you want to change employers, you can take advantage of portability and file for a new H1B visa without being subject to the cap. In order to port, you must have already been counted towards the H1B visa cap for your current H1B visa, and you must be moving to a new job position that is the same or similar to your current position.

NAFTA TN, O1, and L1
If you are a foreign national of Canada or Mexico, you may qualify for a NAFTA TN Visa, a work visa that is only available for nationals of those two countries. If you have had several achievements in your area of occupation, you may be eligible to obtain an O1 visa for extraordinary ability or achievement. If you will be transferring from an affiliated foreign company to the US for a brief period, you may be eligible for an L1 intercompany transferee visa.

Other possibilities
If you cannot take advantage of H1B portability, and you are not an OPT student, and you have no other appropriate visa category available to you, another option would be to look into the B1 visitor visa in lieu of the H1B. This category has limits, including the requirement that any salary or compensation you receive must come from abroad and not from a US source. In the alternative, in certain cases an employer can commence an intern program that uses the J1 exchange visa or the H3 trainee visa. Finding an alternative to the H1B may be difficult and require creative thinking and a thorough knowledge of immigration law. In order to explore all the possibilities that may be available to you, contact a professional and competent immigration attorney.

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