Creative Solutions

Challenge

U.S. Citizenship and Immigration Services (USCIS) allots a set number of H-1B visas annually. Our client in the health care industry identified a highly skilled foreign national candidate for a critical business position, but was unable to employ the candidate for several months due to the annual limit on H-1B visas for cap-subject (for-profit) companies. This included the period between when the visa petition could be filed (April) and when it would take it effect (October).

Solution

Working closely with the company and the candidate, we leveraged the candidate’s H-1B status with a non-profit institution that was exempt from the visa cap. Our attorneys were mindful of the often overlooked USCIS employment portability provisions. These provisions allow a cap-exempt H-1B worker to begin employment with a cap-subject employer upon filing of the new petition, instead of waiting for approval and the effective validity date.  We structured the filing so that the candidate could begin employment with our client six months earlier than anticipated. This also required ensuring and documenting that certain preconditions were met, including obtaining the required Labor Condition Application to ensure full compliance with USCIS and Department of Labor regulations during all periods of employment.

We have assisted other cap-subject (for profit) clients in navigating the H-1B cap in other creative ways. We work with our clients to understand and develop their relationships with cap-exempt institutions, so that when they identify a foreign national candidate who they are unable to onboard due to the annual H-1B cap, we can explore opportunities for the candidate to work part-time at the cap-exempt institution. This provides cap-subject clients an opportunity to leverage the cap-exempt petition and sponsor the foreign national for concurrent H-1B employment.