Cap-Exempt H-1B Visa Models To Retain Skilled Immigrant Talent Amid High Demand

The diminishing likelihood of obtaining H-1B specialty occupation visas through the yearly lottery has led to the emergence of alternative methods for high-skilled foreign workers to secure visas not subject to the statutory cap. Although still in the early stages, nonprofit organizations like Open Avenues, based in Boston, are collaborating with educational institutions to retain essential talent at expanding companies.

The surge in demand from employers for the H-1B program highlights the necessity for innovative solutions to accommodate both workers and employers who depend on international expertise, according to Danielle Goldman, Executive Director of Open Avenues. She explains, “We hire them to train the future US workforce in their field,” adding that this enables companies to “file a cap exempt H-1B visa outside the lottery.”

Missing out on the 85,000 H-1B visas offered annually through the lottery can be a significant obstacle for emerging businesses whose immigrant employees lack alternative visa options, says Goldman. Moreover, the odds are becoming increasingly challenging. In March, over 780,000 registrations for new H-1B visas were submitted, marking a 61% increase from the previous year.

Goldman emphasizes the issue by saying, “They are putting in key folks—software developers, data scientists, co-founders—into the lottery and losing them.” To maximize the potential of immigrant talent, she suggests, “let’s create more cap exempt pathways.”

Collaborating with Colleges

Two primary categories of employers can sponsor H-1B visas not subject to the cap—universities and nonprofit organizations affiliated with higher education institutions, such as hospitals and research centers. Open Avenues takes advantage of this exemption by sponsoring fellows for cap-exempt H-1B visas. These fellows teach and collaborate with college students part-time, enabling their full-time employers to retain essential talent under concurrent visas.

Srutartha Bose, an Indian immigrant and one of these fellows, discovered Open Avenues through a LinkedIn post last year. After completing her master’s degree and securing a biotech research job in Boston, she believed her long-term career prospects in the US would depend on the H-1B visa lottery results. However, as her chances of selection decreased, she sought other alternatives. “I honestly did not think there was any other option,” said Bose, now a senior research scientist at Swiss-American biotech company CRISPR Therapeutics AG. As an Open Avenues fellow, she guides students through semester-long bioscience projects that closely resemble her company’s work environment.

Early Stages of Career

Open Avenues, which submitted its first visa petition in 2019, mainly sponsors early-career immigrant workers who wish to remain in the US but have been unsuccessful in the H-1B lottery. These individuals are typically employed through Optional Practical Training (OPT), a program allowing foreign graduates of US colleges and universities to work temporarily while still on student visas.

To work with Open Avenues, employees must hold at least a bachelor’s degree in science, technology, mathematics, engineering, or a related business field. They can continue as fellows until they secure an H-1B visa through the lottery or obtain permanent residency via a green card.

In the past year, Open Avenues had 80 fellows from 24 countries. These fellows dedicate five to eight hours per week to facilitate hands-on learning for college students from 10 educational institutions training in their fields. Youssef Bousfoul, an Open Avenues fellow from Morocco and lead computer scientist at California-based LBX Food Robotics, said that students participate in company meetings and brainstorming sessions, providing valuable insights. “We’re learning from those we work with,” he stated, adding that they are “always open to new ideas from them, whatever background they have to help us grow.”

Michigan’s Approach

Global Detroit, a nonprofit dedicated to enhancing Southeast Michigan’s economy by promoting immigrant employment and homeownership, has also adopted the cap-exempt visa model to support local businesses. Similar to Open Avenues, Global Detroit collaborates with colleges to sponsor skilled immigrants for cap-exempt H-1B visas. However, their Entrepreneur in Residence Program exclusively works with regional higher education institutions, such as Wayne State University, the College for Creative Studies, Michigan Technological University, and Lawrence Technological University. This program targets immigrant startup founders until they can acquire a green card or a cap-subject H-1B visa.

Steve Tobocman, Executive Director of Global Detroit, explained, “There isn’t a visa for somebody who’s got a great idea but hasn’t raised the capital yet.” He further questioned whether a startup founder would relocate their business to the US after launching it in another country. Global Detroit has sponsored nine startup founders at eight companies for cap-exempt H-1B visas, covering industries from encryption software to community-supported agriculture.

Tobocman has developed a guide for other communities to adopt this model, utilizing cap-exempt H-1B visas to attract talent. He has also hosted business and economic development groups from across the nation, indicating growing interest in retaining foreign expertise.

Rising Demand

The expansion of the Open Avenues model reflects the increasing demand for alternatives as visa lottery selection rates continue to decline, according to Sarah Peterson, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP. She said, “Employers are really trying to figure out how to keep all this really skilled labor we have in the US and need in the US, frankly.” Peterson believes more organizations like Open Avenues may emerge due to the broken system.

Srutartha Bose, an Open Avenues fellow, is currently applying for a green card while working at CRISPR Therapeutics. She argues that without additional options for immigrants, the US could miss out on the advantages they bring. Bose called the visa cap “a little absurd” and praised alternatives like Open Avenues as “a win-win for all sides,” adding, “The more options, the better.”