There Is Hope after the H-1B Cap: Alternatives to the H-1B Visa

Alternatives and options if the change in H-1B visas applies to you or your business.

H-1B Visa Alternatives for 2018

Meredith W. Barnette

July 5, 2018 12:36 PM

There is a statutory cap that limits the number of new H-1B petitions that may be approved in a fiscal year. The cap of H-1B visas is currently set at a total of 85,000. 20,000 of those visas are reserved for the “Master’s Cap” for those foreign nationals who have obtained an advanced degree from a U.S. college or university. The filing period for Fiscal Year 2019 was April 2-6, 2018. During that time, U.S. Citizenship and Immigration Services received 190,098 H-1B petitions and used a computer-generated random selection process (commonly known as the “lottery”) to select the appropriate number of petitions to meet both caps. This number is down from FY 2018’s total of 199,000. For those petitions not randomly selected, employers and foreign national employees are often left scrambling to find other visa options. It is important to note that there is hope after the H-1B cap and that other options, while not always ideal, are available. [1]

Does the Cap Apply to You?

The cap may not necessarily affect every employer, as some are exempt from the H-1B cap. These employers include institutions of higher education or a related or affiliated nonprofit entity, nonprofit research organizations, and governmental research organizations. Additionally, H-1B extensions, change of employer petitions, and amended petitions are not affected by the cap.

Concurrent Employment with a Cap Exempt Employer

If an individual holds H-1B status pursuant to cap exempt employment, then s/he may accept concurrent employment with a cap subject petitioner. In other words, if an H-1B holder is concurrently employed with an exempt and nonexempt employer, then s/he will not be counted toward the cap. Alternatively, an H-1B employee may be employed by a cap-subject employer but employed at a qualifying cap-exempt organization, and would not be counted against the annual cap.

The Cap Applies – What Are Other Options?

Employment Authorization Pursuant to F-1 Student Status

An employee may be able to leverage employment authorization based on current F-1 status or, in the alternative, return to school to further his/her education and receive employment authorization in the course of his/her studies. An F-1 student may be eligible for the following:

  • Curricular Practical Training (“CPT”). CPT is authorized by the school’s Designated School Official (“DSO”) on the student’s form I-20 and the position offered must be relevant to the student’s degree program. Students are not limited in the amount of CPT in which they may participate; however a student who has engaged in one full year of CPT is ineligible to participate in post-completion OPT.
  • Note a recent trend where USCIS is questioning the validity of CPT, especially where the student continues working for the OPT employer by enrolling in a degree program that immediately authorizes CPT. Students who pursue this option should maintain detailed documentation demonstrating their course attendance, including but not limited to official copies of current transcript, copies of degrees/certificates showing course completion, receipts for tuition payments, books, parking passes, & school supplies, school ID, course syllabi or outlines for the program, documentary evidence of physical attendance, and utility bills or other evidence of student’s current residence.

Optional Practical Training (“OPT”)

OPT may be authorized in an occupation that is directly related to the student’s major area of study. Generally, the total period of such authorization cannot exceed 12 months, with limited exception.

Note a recent trend where USCIS is denying an H-1B change of status request where the student has used more than 12 months of CPT and OPT at the same degree level.

24 Month Optional Practical Training (“OPT”) STEM Extension

F-1 students who receive science, technology, engineering, and mathematics degrees included on the STEM Designated Degree Program List may be eligible for an additional 24 months of post-completion OPT beyond the initial 12 month period mentioned above. To qualify, the F-1 student must currently be in a valid period of OPT and the STEM employer must meet certain requirements, including, but not limited to, enrollment in E-Verify, offering an OPT opportunity that is commensurate with those of similarly situated U.S. workers, implementation of a formal training program, and completion of a training plan.

Training Visas

If the position offered is more a training opportunity than productive employment, then the employer should consider a training visa.

  • H-3 Visa. To qualify, the training program must meet the following conditions: the training is not available in the applicant’s own country; the applicant will not be placed in a position which is in the normal operation of the business; the applicant will not engage in productive employment; and the training will benefit the applicant in pursuing a career outside the U.S. The applicant must also be able to prove that she plans on returning to her home country, both at the time of application for the H-3 visa and admission to the United States.

  • J-1 Visa. This visa permits foreign nationals to participate in an exchange program designated by the U.S. Department of State. The applicant must be coming to the U.S. for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training. In order to receive a J-1 visa, the applicant must apply for and be accepted by an exchange visitor program designated by the U.S. Department of State. Some exchange visitors are prohibited from acquiring H, L, or permanent residence status for 2 years after participating in a J-1 program unless they obtain a waiver of that requirement from the U.S. Department of State.

May 2018 Policy Update

On May 11, 2018, USCIS issued a policy notice regarding “Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors.” Foreign Nationals in F, J, and M (vocational training other than a language) non-immigrant statuses are given D/S or “Duration of Status” on their I-94 forms during their time as students and visitors. In the past, while it was problematic for these foreign nationals to remain past their completion of studies without changing status, they would not accrue “unlawful presence.” Accruing unlawful presence can lead to various bars to future US re-entry. Under the new policy, beginning August 9, 2018, individuals in F, J, and M status who failed to maintain their status will start accruing unlawful presence on that date should they fail to change their non-immigrant status or leave the US. [2]

Other Options?

O-1 Visa for Extraordinary Ability

Foreign nationals who are highly talented or have reached a high level of acclaim in the sciences, arts, education, business or athletics should consider the O-1 visa. To qualify, the foreign national employee must be extraordinary in her field in terms of knowledge, ability, expertise and accomplishments and the position being offered must require the services of an extraordinary person. When pursuing the O-1 visa, the beneficiary should be prepared to demonstrate that she has sustained national or international acclaim and that her achievements have been recognized in the field through extensive documentation.

B-1 in lieu of H-1B

There is short term option for individuals who will be posted in the U.S. in a professional level position and who hold the equivalent of a U.S. bachelor’s degree. The applicant must receive her salary only from her foreign employer, except reimbursement of incidental travel costs such as housing or per diem. This visa is not intended for long term placement and should be used for activity in the U.S. that is less than 6 months in duration.

Work Outside the US – and Come Back

Global employers may create visa opportunities by electing to send key employees to work for an affiliate, subsidiary, or parent company outside the U.S. for one (1) year in a specialized knowledge, managerial, or executive role. This strategy may qualify the employee for an L-1 visa and facilitate the green card process for those who qualify as Multinational Managers.

Treaty Visas

Employers should also keep in mind that certain nationalities have additional visa options available to them, including but not limited to, Australia, Canada, Mexico, Chile, and Singapore.

Lawful Permanent Residence

For those foreign nationals not born in one of the countries with a backlog of immigrant visas, sponsorship by a U.S. employer for lawful permanent residence (“green card”) may be an option for long-term work authorization in lieu of short-term.

Stay Tuned

Identifying viable alternatives to the H-1B visa is an increasingly relevant exercise for employers as the demand for the H-1B continues to exceed the statutorily allotted numbers. On April 18, 2017, President Trump signed an executive order entitled, “Buy American and Hire American,” [3] which ordered a multiagency report on changes needed to the H-1B which may result in an even more restrictive visa program. For two straight years, the H-1B visa applicants have been restricted in using premium processing, an option to expedite case adjudications. USCIS states on its website that premium processing will not be available until September 10, 2018.[4] Policy decisions such as these are the likely cause for less H-1B visa applications in recent years.


Meredith W. Barnette has practiced U.S. Immigration law since 2006. Prior to becoming an attorney, she was an Immigration Paralegal. Ms. Barnette represents employers and employees in a variety of industries including, but not limited to manufacturing, information technology, medicine, and academia. She has extensive experience in the preparation of nonimmigrant visa petitions as well as extraordinary ability, outstanding researcher and multinational executive and manager immigrant petitions.





Related Articles

The New Business Immigration Regime

by Christy Nguyen

Five things executives and HR should do.

Business Immigration Regime

The Day-To-Day of an Immigration Lawyer in the U.S.

by Best Lawyers

In this article, Best Lawyers takes a glimpse into the day-to-day life of an immigration lawyer, what roles they must take on and how their assistance may be critical to the outcome of a case.

Two U.S. flags surround gold text and official seal

Maximizing Your Chances of Approval with an Immigration Attorney

by Best Lawyers

Immigrating to a new country is often a complex, arduous and sometimes costly process. To maximizing your chances of approval on your immigration journey, seek the counsel of an experienced immigration attorney.

View of the Statue of Liberty with birds in backdrop

"Lawyer of the Year"

Texas "Lawyer of the Year" 2022

Charla Truett

Immigration Law

Dallas/Fort Worth, TX


U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules

by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

Paying It Forward

by Best Lawyers

One woman’s journey from immigrant daughter to immigration attorney: her passion, purpose, and pursuit of excellence.

A Woman's Journey From Immigrant Daughter to

The Price of Admission

by Janice Zhou

States and the federal government are engaged in a pitched battle over immigration and refugee settlement—with the legal profession caught in the middle, taking fire from both sides.

Immigration Reform in Connecticut

Workforce Mobility at Risk Under a NAFTA Renegotiation

by Suzanne K. Sukkar

The assessments of President Donald J. Trump’s first year in office have had a recurring stormy theme.

Workforce Mobility at Risk with NAFTA Renegot

Treaty Visas: A Good Option for Businesses

by Eric Fleischmann

Business immigration attorneys have a challenging task. Clients, typically large multinationals, have high expectations.

Treaty Visas: A Good Option for Businesses

U.S. Business Immigration: Year-in-Review

by Christian S. Allen

For more reasons than are probably appropriate to include here today, 2017 will be forever be burned into the memories of everybody in the U.S. immigration industry, and all HR and legal professionals who were involved in hiring and/or employing foreign workers in the U.S. No matter your political persuasion, 2017 turned out to not be anything like we all expected at the beginning of the year, fol

U.S. Business Immigration: Year-in-Review

Make the Workforce American Again

by Michael J. Wildes

The H-1B visa program allows U.S. companies to temporarily employ foreign workers in specialty occupations, including jobs in technology, engineering, science, architecture, accounting, and business.

Make the Workforce American Again

The Rise and Fall of the H-1B Worker

by Kathleen Saenz Poppenger

Until recently, most people were unfamiliar with the H-1B visa, except for those seeking to take advantage of this temporary worker category.

Rise and Fall of the H-1B Worker

Trending Articles

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in New Zealand™ 2024 Awards

by Best Lawyers

The Best Lawyers in New Zealand 2024 awards include an elite field of top lawyers and law firms.

Auckland, New Zealand Skyline at twilight

Presenting The Best Lawyers in Singapore™ 2024

by Best Lawyers

Best Lawyers offers the most prestigious awards for lawyers and law firms in Singapore for 2024.

Singapore skyline at night

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Announcing The Best Lawyers in Japan™ 2024

by Best Lawyers

We are proud to present the 2024 edition of Best Lawyers awards for Japan which include the top lawyers and law firms in the country.

Mt. Fuji in the background with fall leaves and structure in front


Salvi & Maher, LLP: Illinois and Wisconsin's Personal Injury Firm

by Justin Smulison

For more than 35 years, Salvi & Maher LLP has defended their clients throughout Illinois and Wisconsin in various areas of personal injury law, including medical malpractice, motor vehicle accidents, premises liability and trucking litigation.

Skyline of Chicago with green river and blue background


Athea Trial Lawyers

by Justin Smulison

Athea Trial Lawyers is a nationally recognized firm who has received record-breaking victories throughout the country on behalf of personal injury victims.

women with shades of blue in mass arrangement


Rash Mueller Knows What it Means to Help

by Jeffrey Beasley

David Rash of Rash Mueller draws from first-hand experience on the affects of tragic personal injury and loss. His Florida law firm has spent years dedicated to helping the injured find justice.

Doctor with scope reviewing brain scan on screen

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag


Mastering the Art of Trial Practice

by John Fields

With its billion-dollar track record, Morelli Law Firm has earned a reputation as one of the country's most successful trial firms.

Morelli and team at table in office with windows

Announcing The Best Lawyers in Germany™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

The Role of a Lawyer in the Slip-and-Fall Settlement Process

by Best Lawyers

Let’s examine the role of a lawyer in the slip-and-fall settlement process and how they can help you achieve a fair and just outcome for your case.

Unseen man with wrap on wrist sits across from woman in suit


Paulson & Nace, PLLC: A Pioneer in Personal Injury Law

by Best Lawyers

Since its inception more than 40 years ago, Paulson & Nace, PLLC, a Washington D.C., Maryland and West Virginia-based personal injury firm, has always led with compassion first. Here are some key insights from the firm on how to go about filing a personal injury claim.

Group of lawyers meet around a conference table