U.S. IMMIGRATION SYSTEM | hOT TOPICS

H-1B VISA SITUATION

As noted in the Number Crunch topic, the H-1B quota was filled on April 2, 2007, which was the first day on which U.S. Citizenship and Immigration Services (USCIS) can accept new H-1B Petitions. Once this quota has been met, new petitions that are subject to the H-1B quota cannot be approved until October 1, 2008, unless the Congress affirmatively acts to increase the H-1B cap. To say the least, this gross inadequacy in the quantity of H1B visa numbers is an absurd, frustrating situation, but absent Congressional action, one that needs to be addressed by the business community.

Under current law, there is an additional allotment of 20,000 H-1B visa numbers that are dedicated solely to foreign nationals who hold Master’s Degrees from U.S. universities. But even here, we expect that this Master’s Degree subset will be exhausted well before the end of April.

In the normal hiring cycle, employers generally do not make hiring decisions by April for jobs that are slated to commence in October. Therefore, we expect to continue to receive inquiries from employers seeking to hire foreign nationals, particularly new university graduates holding specific job skills responsive to legitimate employer needs.

On a generic basis, let us share with you our own analysis in determining how to handle requests for employment-based visas once the H-1B visa cap has been met.

First, not all H-1B Petitions are subject to the quota. Therefore, our initial line of inquiry is to determine if a particular case might qualify for an exemption from the H-1B quota. The most common situations for cap-exemption are the following:

1. The employer is an institution of higher education (generally, a university) or a nonprofit entity that is related or affiliated to an institution of higher education;
2. The employer is a nonprofit research organization or a governmental research organization
3. The H-1B worker has already been counted against a previous year’s H-1B cap and has not used up his/her full period of H-1B entitlement;
4. J-1 Physicians who have received waivers from their home residence requirement based upon employment in a medically underserved area or VA facility.

Second, a major and highly frustrating situation occurs when we receive inquiries from H-1B aliens currently working within a university setting who desire to go into the private sector. In such instances, the second H-1B filing from the private sector employer subjects the foreign national to the H-1B cap, since the H-1B alien while working within the university has not been counted against the quota.

However, the law contains a slight escape valve in situations of “concurrent employment.” Specifically, if the foreign national continues to work within the university (i.e., cap-exempt) entity, presumably on a part-time basis, the for-profit (i.e., cap-subject) company could then derive cap-exempt benefits through the filing of a concurrent H-1B Petition allowing the alien to work for the balance of the part-time employment. The law does not contain any provision on the minimum number of hours that need to be spent at the cap-exempt entity, other than it needs to be a legitimate job opportunity. This is one way to structure a case, which, although perhaps not optimal, would confer cap-exemption on an otherwise cap-subject company.

Third, there are some special nonimmigrant alternatives available for foreign nationals of certain countries, to wit: Canada and Mexico (TN); Australia (E-3); and Chile and Singapore (special H1B1). Each of these alternatives provides essentially the same benefits as the H-1B – that is, a generally time-efficient pathway to employment-based immigration rights granted for a temporary period of time.

We have also become increasingly more assertive in analyzing alternative temporary, nonimmigrant visa classifications for other foreign nationals, such as: the J-1 Exchange Visitor classification for certain business personnel (generally, trainees); the O-1 visa for “aliens of extraordinary ability”; the E-1/E-2 option for certain investors and business personnel conducting extensive bilateral trade; more creative utilization of employment authorization available to students; and L-1 options for qualifying employees of foreign companies seeking to establish or maintain their business presence in the United States.

Fourth, in some instances, we would forego entirely the nonimmigrant process and move straight to permanent resident status. In certain situations, particularly for foreign nationals possessing preeminent or outstanding abilities in their professions or working in endeavors that potentially benefit the United States, it is possible to avoid entirely any type of recruitment/advertising effort, and instead to file a request for permanent residence directly to USCIS. In such instances, it may be possible to move a case for permanent residence through the system rather quickly, as well as to provide our clients with employment permission in a highly time-efficient manner. Even in cases requiring Labor Certification Applications, the PERM process is going rather quickly, and in many instances, we have been successful in obtaining employment authorization for permanent resident cases within roughly a 6-9 month timeframe, which, with advanced planning, can serve the needs of our clients.

Fifth, ultimately, we begrudgingly acknowledge that there is not a magic panacea for all immigration cases. In some instances, there may not be a suitable strategy responsive to the needs of both the employer and the foreign national. In such instances, we try to explain forthrightly our legal conclusions, which at least will give all parties the planning tools to make alternative arrangements.

Aronson & Associates, P.A.
1221 Nicollet Mall Suite 506
Minneapolis, MN 55403
Tel: 612-339-0517
Fax: 612-349-6059
info@aronsonimmigration.com

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