Plan B for H-1B Applicants

Although you may not yet know whether your H-1B petition has been selected for processing under the FY2018 cap, it is never too early to think about alternatives and come up with a feasible Plan B.  Now that premium processing has been suspended, applicants will need to wait until they receive the USCIS Receipt notice by standard mail (hopefully by the end of April) to be certain their petition has been accepted for processing, and under current processing times will likely need to wait at least another four to five months until the H-1B petition is actually adjudicated to know they can definitely plan on remaining in the United States and work in H-1B status for their sponsoring employer. This results in a long time of wondering and waiting. We provided a summary of possible options last year here. In addition to the F-1, STEM, L-1, H-4, TN, E-3, E, and O options detailed in the May 2016 article, an individual may be able to obtain concurrent employment with a cap-exempt employer under a broader interpretation of cap-exempt employment or pursue parole as an entrepreneur under the International Entrepreneur rule effective July 16, 2017.

Concurrent Cap-Exempt Employment: Some employers are not subject to the limitations of the FY Cap – these can include colleges or universities, nonprofit entities “affiliated or related” to a university, nonprofit research organization, governmental research institutions, and workers employed “at” such entities (even if not “by”) if worker spends majority of work time performing duties that directly further purpose/objectives of the cap-exempt organization. As long as an employee does not “cease to be employed” with the cap-exempt employer, he or she can concurrently work for an employer who would otherwise be subject to the cap. The cap-subject employer would be required to file a separate H-1B petition and provide evidence of the ongoing concurrent cap-exempt employment, but this can be a feasible option for individuals who can find cap-exempt employment. (For more discussion on the cap exempt employers, click here.)

International Entrepreneurs: Effective July 16, 2017, individuals who have a substantial ownership interest (more than 15 percent) in a start-up entity that  has received a qualified investment (either $250,000 from  qualifying investor(s) or at least $100,000 through government award(s) or grant(s)) may be eligible for a grant of parole in the United States for up to 30 months with possible extension for up to a five-year maximum.  For further details on the entrepreneur rule, requirements, and process, click here and here.

If you are interested in discussing these options or other alternatives to the H-1B, please contact a member of our Immigration Group.