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Additional Options for Those Who Miss the H-1B Cap

1416931_untitled.jpgAs explained in previous posts and widely discussed in the press and on the Internet, every year only 65,000 foreign workers (and additional 20,000 workers who have earned U.S. Master’s degrees) will receive H-1B visas. This limitation is called the H-1B cap or H-1B quota and is congressionally mandated (though there are a number of foreign workers and institutions that are cap-exempt and therefore are not counted towards the quota).

The H-1B cap presents unique challenges for foreign workers and U.S. employers alike as every year thousands of businesses file H-1B petitions for employees, only to find out that the cases were not selected in the lottery that U.S. Citizenship and Immigration Services (USCIS) conducts every year if USCIS receives more than the allotted amount of H-1B petitions.

Many of these would-be employees are foreign students who have recently graduated from U.S. universities with degrees in the highly sought after fields of Science, Technology, Engineering, or Mathematics (the STEM fields). In 2008, Congress amended the previous rules for foreign students by allowing them to work in the U.S. for up to 29 months pursuant to a program called Optional Practical Training (OPT).

Prior to 2008, foreign students could only work for 12 months without an H-1B visa. Additionally, there are other benefits of the OPT program such as the exemption of the job offer requirement at the time of applying and the availability of universities’ Designated School Officials whose job it is to walk students through the application process.

Therefore, it is unsurprising that the new OPT program skyrocketed in popularity even during its very first year of implementation. In 2008, USCIS approved nearly 29,000 OPT petitions and in 2009, USCIS approved nearly 100,000 OPT petitions. The number of approved petitions continues to increase every year with 2013 seeing 123,000 approved petitions. Since 2008, the Government Accountability Office estimates that approximately 560,000 foreign students have been approved for the OPT program.

Of course, there are detractors who do not approve of the OPT program. A number of critics complain that the program is used as an unofficial expansion of the H-1B cap. Additionally, some immigration advocates are against the program as it does not have the same regulations as the H-1B program. For example, under the H-1B program U.S. employers are required to make certain attestations and disclosures about how the foreign worker will be treated and compensated. These requirements are not found in the OPT program. Moreover, according to some sources, U.S. employers who hire OPT workers do not have to pay Social Security taxes or Medicare taxes on those workers’ salaries.

The Rant

Even with these considerations, the OPT program remains an excellent option for many foreign students who are trying to make the transition to becoming a foreign worker but who unfortunately did not make the H-1B quota. It should also be highlighted that there are additional work visas available such as the O-1 visa and the L-1 visa which do not have an annual cap and which may be appropriate for a foreign worker, depending on the individual’s personal circumstances.

Additional Blog Posts

Update: DOMA and Immigration, ImmigRantings, July 10, 2013
New Immigration Developments: the SAFE ACT, ImmigRantings, June 27, 2013