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Making The H1-B Visa Quota -- USCIS Begins Accepting H1-B Visa Applications On April 1, 2008

by Karen-Lee Pollak

On April 1, 2008, the United States Citizenship and Immigration Service (USCIS) begins accepting H1-B visa applications for the 2009 fiscal year. Last year, the USCIS reached its H1-B visa quota in one day. By late afternoon on April 2, 2007, the USCIS received approximately 150, 000 H1-B applications and had to resort to a random selection process to select applications which fell within the quota. All applications which were not selected or applications filed after April 3, 2007 were returned.

It is likely that the USCIS will also reach its H1-B cap for the 2009 fiscal year soon after April 1, 2008. The H1-B visa program enables U.S. employers to hire highly educated foreign professional workers for "specialty occupations" - jobs that require at least a bachelor's degree or the equivalent in the field of specialty. These foreign workers provide needed specialized or unique skills, fill a temporary labor shortage and/or supply global expertise. Holders of these visas can stay in the United States for up to six years.

Prudent employers need to start considering and planning their H1-B visa needs for the upcoming fiscal year. It is also advisable for employers to start making contingency plans for bringing temporary professional workers to the United States if the H1-B cap is reached.

WHY THE EARLY H1-B VISAS CUT-OFF?

H1-B visas are limited to 65,000 per year. However, certain cases are exempt from the cap. This numerical limit is further reduced by free trade agreements that specifically allocate 6,800 H1-B visas for nationals of Singapore and Chile making only 58,200 visas available in the standard H1-B pool.

WHO IS EXEMPT FROM THE H1-B CAP?

The following cases are exempt from the H1-B cap: 1) extensions for current H1-B workers, whether for a new or existing employer in sequential employment situations; 2) concurrent employment in a second H1-B position; 3) amended petitions; 4) H1-B employment for nationals of Chile or Singapore, 5) petitions for new employment at an exempt organization such as a nonprofit research organization, an institution of higher education or an affiliated non-profit entity and 6) 20000 H1-B visas for graduates of U.S. universities who have earned a Master's or higher degree.

IMPACT OF THE EARLY CUT-OFF OF H1-B VISAS

After the H1-B cap is reached, private employers cannot hire new temporary professional workers in H1-B status for the 2009 fiscal year. Last year, the USCIS advised that it would return all H1-B petitions for first-time employment filed after April 2, 2007. For those employers in need of hiring temporary professional foreign workers after the H1-B cap is reached, there may be alternative options available.

WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

The L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent, subsidiary, or affiliated entity. This visa allows a U.S. company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period. The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for the U.S. company in a similar position. It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in the United States. Only needs to be in one of the three classes: manager, executive, or specialized knowledge). The foreign entity may pay the employee his or her salary but the U.S. company must control the employee's performance of his or her work. Authority to engage and terminate the employee is strong evidence of control. There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization. The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in the United States. There is a five-year limit on L-1B employees with specialized knowledge staying in the United States and a seven-year limit for L-1A managers and executives. Consular posts generally see an increase in L-1 applications after the H1-B cap is reached. However, there is no legal reason why aliens eligible for H1-B status cannot legitimately seek out other type of visas, including L visas.

The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

E or treaty visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital. The E-2 category includes both individual investors and managers, executives, and essential skills employees of business entities that do the investment. As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the U.S. and the applicant's home country. For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business. There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country. The USCIS determines whether the trade is substantial on a case-by-case basis. Factors that may be considered include the nature of the business, the number of transactions, quantity of trade and capital outlay.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis. The investor must have experience in the business and must be actively involved. The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the U.S. for a two-year period with unlimited two-year renewals. Spouses of E visa holders may apply for work authorization.

TN Status

Employers may continue to sponsor Canadian nationals in TN status under the North American Free Trade Agreement (NAFTA). This visa is available to Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA. The applicant must have the degree or credentials required for that profession. The TN visa is valid for one year and may be renewed indefinitely. [Two sentences deleted 1/24/08 -- Weekly Editor]

The O Visa

Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa. Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition. Beneficiaries in the arts must show prominence and a record of extraordinary achievement. Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field. The O visa is usually granted for three years and is renewed in one-year increments. The O visa may be renewed indefinitely. A spouse of an O visa holder cannot apply for work authorization.

The J-1 Exchange Visitor Visa

This visa is available to foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs. First, the prospective employer must establish an approved exchange program. Such program may be sponsored by government agencies, private businesses or educational agencies. The foreign national may then enter the United States for the purpose of doing research, gaining training or studying. Depending on the foreign national's qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars. Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

MAKING THE H1-B CUT-OFF FOR FY 2009

In order to timely receive an H1-B visa, applications should be filed on April, 1 2008. The prudent employer will be well-served in starting to consider their employment needs for the upcoming fiscal year. The FY 2007 numerical cap was reached on April 2, 2007. It is likely that the FY 2008 H1-B cap may also be reached within a day unless Congress acts to raise the cap. Because the USCIS generally works on petitions in the order they were received, it may be worthwhile to pay the extra $1,000 premium processing fee to have your H1-B visa applications adjudicated in fifteen days--assuming the USCIS again makes premium processing for H1-B applications an option. Unless Congress raises the annual H1-B visa cap, employers will have to file their H1-B petitions as early as possible and make use of other visas available to bring temporary workers to the United States for FY 2009. Readers are encouraged to contact their senators and representatives to push for an increase in the H-1B cap.


About The Author

Karen-Lee Pollak chairs the Immigration practice group at Goins, Underkofler, Crawford & Langdon, LLP. She may be reached at 214-969-5454 or karenp@gucl.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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