There are no spots available for cap-subject H-1Bs for FY2013.  It’s a bad and scary time for non-immigrant entrepreneurs and recent graduates, but “H” isn’t the only letter in the alphabet or the only strategy that permits lawful employment in the US. Taking a look at some of the letters of the alphabet, there may be opportunities: 

“E” status is available for treaty investors or treaty traders or Australian workers in a specialty occupation.  The investors may come from a country that has a specific E-2 visa treaty with the US and must invest a “substantial” amount of money in a US enterprise—or be a key employee of an E-qualified enterprise.  Similarly, “traders” may come from a country with which the US has an E-1 visa treaty and may either establish or undertake qualifying employment with a  company engaging in substantial international trade (exchange of goods, services, and technology) principally between the US and the treaty country.  For Australian natives, the E-3 visa is like the H but has a cap that hasn’t yet been met.

“F” visas are for full-time students.  Returning for another degree may not be appealing for recent graduates, but student status is a viable option to permit a foreign national to stay longer in the US and eventually secure employment authorization.  Of course, graduates are eligible for OPT employment authorization and STEM graduates working for e-verify participating employers may extend their OPT from 12 to 29 months.

“H” visas are available if the employer is cap exempt or if the worker has had an H visa subject to the cap.  One word of caution, to be exempt as an individual worker, the worker must have been employed  using the approved cap-subject H status—so, don’t jump too fast.

“O” visas are available for “aliens of extraordinary ability.”  The “O” visa is an option for the founder of a start-up or for an employee.  Either way, the foreign national’s accomplishments in the field must be substantial and able to be well documented.  In the case of a start-up company, the start-up must have commenced business.  The “O” visa sets a high documentary bar to jump over, but founders of start-ups and other extraordinary people are able to clear that bar.

“TN” visas are available for Mexican and Canadian citizens whose work fits into a schedule of occupations and professions that derive from the NAFTA treaty. 

There are other letters in the immigration alphabet of non-immigrant visas that may fit a particular situation and immigrant visa options.  The absence of cap subject H visas is a big problem for employers who need skilled and well educated workers and those skilled and well educated workers who need immigration authorization to work.  There are options for many of those who look closely at their A, B, Cs.