|
|
|
|
SUBSCRIBE The leading Copyright |
Life After The H-1B Cap: Don't Let Your Organization Fall Victim To "The Cap"by David Nachman, Esq.October 1st has come and gone without any legislative action on Capitol Hill. Therefore, the cap on the number of H-1B petitions for the fiscal year has officially decreased from the current 195,000 to 65,000. This reality has caused some to panic because this decrease reduces the number of H-1B visas available by two-thirds. The number of H-1B visas has increased temporarily during the past several years. These periodic increases may have created a comfort zone for employers and may now leave some questions regarding whether they will be able to call upon highly-skilled foreign worker employees in the future. In this regard, it is important to understand the new regime, but it is also important to consider other viable options for professional and specialty workers. Who is affected by the changes to the cap? The new cap affects all foreign nationals seeking an initial H-1B visa after September 30, 2003 . The cap is of particular importance for students, as in the past, when the H-1B cap was reached, important benefits were extended to F and J nonimmigrants that filed before the cap announcement, but did not come under the cap in the particular year. These individuals had their status extended, and then their requests to change status could be approved in the next fiscal year. Furthermore, it appears to be the case that all F-1 or J-1 employees whose authorized practical or academic training period expires before the USCIS approves the petition for H-1B classification, may have to stop working immediately and be placed on a personal leave of absence without pay until the date of their H-1B approval. This could also cause serious delays for new hires or international transferees awaiting H-1B approval. Are there any EXCEPTIONS to the H-1B cap? There are three major exceptions to the H-1B cap. First, the new cap applies only to NEW employment. This means that the cap will have no affect upon H-1B extensions through the same or even new employers. However, individuals previously employed by organizations not subject to the cap, who then seek to change to a non-exempt employer will be subject to the cap. Second, the cap does not apply to H-1B hires sponsored by institutions of higher education or non-profit entities related to or affiliated with any such institution. Moreover, H-1B visa petitions filed by non-profit research organizations or governmental research organizations are also exempt from the new cap. Are there other important changes that our organization should be aware of? Yes. Most notably, the $1,000 U.S. Department of Labor ("DOL") training fee for H-1B visa petitions will no longer be required after October 1, 2003 . Only a $130 filing fee will be required. Of course, the $1,000 Premium Processing fee remains in full effect and will certainly be a recommended way to proceed as the new H-1B cap rapidly approaches. How should our organization proceed in the future based on these changes? Here are a few ideas to consider. H-1B petitions should be filed as soon as possible after October 1st. It should be noted that petitions can be filed six months before the employment start date to maximize the possibility of securing an H-1B. Premium processing is another avenue that should strongly be considered. Congressional action to increase the cap is by no means assured. The closer we move toward the 2004 election cycle, the less likely legislative action seems possible. However, if the cap is reached early enough, there may be enough pressure on the Congress to increase the cap. Besides H-1B classification, it may also be possible to make use of other nonimmigrant visa categories to achieve organizational goals. For example, the E-1 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the U.S. solely to engage in trade of a substantial nature principally between the United States and the alien's country of nationality. The trade involved must be international exchange (successfully negotiated contracts binding on all parties) of items of trade between the U.S. and a treaty country. Furthermore, the E-2 classification is applicable for a national of a country with which the United States has a commercial treaty, who is coming to the United States solely to direct and develop the operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital. The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails. The L nonimmigrant category presents yet another option. The L-1 category applies to aliens who work for a company with a parent, subsidiary, branch, or affiliate in the U.S. These workers can come to the US as intracompany transferees who are coming temporarily to perform services either:
About The Author |
Add to del.icio.us