Hiring Foreign Employees At Your Startup When The H1-B Visa Cap Is Reached

I’m willing to bet just about every small business owner of a startup company will ask this perilous question: what happens when the H1-B visa cap hits? What then? How’s a startup company supposed to obtain readily available manpower? The H1-B visa isn’t an unlimited resource, for sure. Only every year does it provide a specific number of possible applicants —  65K for general workers and 20K for advanced-degree associates — and if you don’t get your foot in the door right away, you just might miss out. After all, count out the number of potential small businesses out there in the nation, and you know you’ve got your competition.

Of course, why is this such a big deal? You’ve got specialized fields in science, engineering and computer programming that can easily picked up overseas, not to mention you’re increasing the potential workforce. This provides several entitlements to a foreign H1-B visa holder, such as spouses and children under the age of 21, the ability to attend school, changing employers to develop more of a work history, possibilities for permanent residency and even leaves of absence and vacation without any worry of losing residency status.

In a sense, the H1-B visa is quite the convenience, not just for the employer, but the prospective foreign employee. There are, however, some alternatives just in case the cap is reached, and you’re out of luck. Pay close attention:

The Alternatives to the H1-B Visa

While you might face the random H1-B selection process (the “lottery,” as it’s called) only to have your case returned along with the filing fee, thankfully, you can possibly file for a TN visa, but only if your foreign worker in question is from Canada or Mexico. The TN stands for “Trade National,” which is a type of visa established in conjunction with the North American Free Trade Agreement (NAFTA). All you would need to show is a verifiable offer of employment in a profession listed on the NAFTA occupation list.

Perhaps, though, the H1-B visa’s cap is reached only for general workers. That does happen quite often. The other cap for more advanced professionals tends to hold out much longer, so possibly seek out foreign employees with advanced degrees, such as a Master’s or higher. This also applies to graduate school. If you have a prospective candidate in such an educational establishment, you might still apply for that cap even if the individual’s in progress.

Let’s say you have a candidate with no advanced degree, no prospect for attending graduate school but the possibility for an individual applying for an internship, you might have a shot with that one. It’s called OPT (Optional Practical Training). They may have a Bachelor’s, for instance, but they’ve missed the H1-B cut-off. However, their time can potentially be extended for another 17 months only if their degree is in something along the lines of science, technology, engineering or mathematics. This helps students that are still in the process of finishing their degree, graduating beyond that of the H1-B visa cut-off, but they’ll still obtain a shot at employment in the States

Some Other Creative Workarounds

Who’s says you need to have an employee work right out of your office? Maybe they can stay in their native country and still work for you. That’s an option with the L1-B visa, working with global corporations and branching out to those foreign companies. You have to keep in mind, though, the fact that the L1-B visa isn’t subject to a competitive wage requirement. In other words, the prospective employee probably won’t be paid as much as someone working in the states. Yet, the employee wouldn’t have to jump through the immigration hoops just to live here in America.

Additionally, a short-term non-immigrant visa might work out just fine, and that one’s called the B-1 visa. There are limitations, though, as with any workaround alternative, such as the fact that the prospective employee can’t receive a U.S. salary or any such remuneration. Of course, as always, consult with your skilled business lawyer for more options, such as the J-1 program or the H-3 trainee program.

In Other Words…. You Have Possibilities

The sky’s the limit when you think about it. Given that the United States is all about corporate and financial well-being, bolstering businesses and the economy as best as possible, presenting options is key.

Take note to review them all. You never know: you just might find an option that’ll fit your situation, just in case that H1-B visa doesn’t work out.

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Matt Faustman is the CEO at UpCounsel. You can follow his business insights on Twitter at @upcounsel.