USCIS announced on July 26 that all H1B caps have been used, including both the 65,000 standard caps and 20,000 advance degree caps. Petitions received on 7/26 will be subject to a random selection process to determine which cases will be accepted. H1B petitions received after 7/26 will be rejected and returned. Then, if you want to work legally and you miss the caps, what can you do? Here are our suggestions.

1. OPT (Optional Practical Training) is a viable option if you hold a valid F1 visa. OPT allows a student to work in their filed of study for a period of twelve months, followed by a 2 months grace period during which you and not allowed to work but can remain in the US legally. Therefore, if your OPT starts from August, you can work until August 2007, with the two more month grace period, you can then apply for the new cap of fiscal year 2008.

2. Another potential avenue is to change your status from OPT to EAD, without an H1B visa. Some green card applications are not based on H1B. For example, Green card application based on NIW does not require an H1B or employer’s sponsorship. If your I140 application is approved on time, and the status of the green card visa retrogression turns to current sometime next year, you can submit the I485 application. Based on the I-485 application, an EAD can be filed simultaneously. The processing speed of EAD is very fast right now. Then, it’s possible for you to obtain an valid EAD before your OPT expires. However, there are also some uncertainties in this option.

3. O-1 Visa. The O-1 visa is a useful category for individuals who have extraordinary ability or achievements in the fields of science, art, education, business or athletics. As such, it is an attractive alternative to H-1B, and it is an option for some outstanding researchers who have a research job offer from a company.

4. Some H1B petitions are not counted against the 65, 000 cap. The following H1B petitions are exempt from the cap:

• The extension of a current H1B.
• Multi-employment. A foreign worker can work for different employers simultaneously with different H1B visas. Where an employer petitions for a foreign worker who has had a first H1B visa counted against the quota, the second petition is exempt from the cap.
• If a foreign worker has changed his/her employer, and his/her former H1B was subject to the cap, the new petition is exempt.
• Where the employer is a higher education institution or a relevant non-profit entity, or a non-profit research organization, or a governmental research organization, a petition is exempt whatever the job is.
• Where the beneficiary is a physician who has received a J waiver under the Conrad 30 program, a petition is exempt.
• Where the beneficiary has been counted against the quota during the past six years, and never been out of the US for more than one year during the past six years, a petition is exempt.

5. Otherwise, if neither of the options above applies to your situation, you have to change to or extend the non-work immigration status. For instance, you may be enrolled in another academic program to keep your F1 status, or change to some other status based on your spouse’s legal status.

However, please note some strategies discussed in this article are pretty tricky, with some risk and uncertainties. Therefore, you need to consult your attorney case by case. But anyway, there is always a solution. We are optimistic about the future and will try to help you out.