Immigration Law Advisory Bulletin
FY2005 H-1B Cap: It’s back and earlier than
ever
By Christopher
R. Helm, James
M. Mei, and Richard
M. Rawson
As it was last year, the numerical cap on H-1B immigration
visas for fiscal year 2005 (Oct. 1, 2004 through Sept. 30, 2005)
is 65,000. However, due to 6,800 reserved for nationals of Chile
and Singapore there are only 58,200 H-IB visas available. As of
Aug. 18, 2004, the United States Citizenship and Immigration Services
(USCIS) had received 45,900 H-1B filings subject to the FY2005 cap.
Of those, 21,000 had been approved as of Aug. 4, 2004; the rest
are in the pipeline.
Employers of foreign professionals should begin planning
now for 2005 hiring needs, if you have not already done so, particularly
if your company is looking to hire candidates currently in F-1 or
J-1 student optional/practical training status.
What is the H-1B Visa?
The H-1B is a temporary working visa that allows foreign professionals
to work in the United States for up to six years. Additionally,
an H-1B visa holder is allowed to apply for a green card while living
and working in the United States. To qualify for the H-1B, an employer
must show that it is offering a “specialty occupation”
position to a “professional” foreign employee. A “specialty
occupation” is generally a position that requires at least
a U.S. bachelor’s degree or the equivalent. A “professional”
foreign employee is generally a person who possesses a U.S. bachelor’s
degree or the foreign equivalent in a field related to the specialty
occupation.
What Can Your Company Do?
The impact of the H-1B cap will be felt by many employers of foreign
professionals. It is likely that the cap will be reached in the
fall of this year, and that employers will face an employment blackout
period for hiring new H-1B foreign professionals until October 2005.
Because of this, employers need to plan their human resources needs
for foreign professionals as early as possible, in order to maximize
the chances of bringing quality foreign employees on board, before
the cap is reached.
Here are some practical tips for employers analyzing H-1B human
resources needs, and the timing for H-1B petitions:
Not every H-1B employee is subject to the cap.
Current H-1B employees applying for an extension, amendment, or
transfer of their H-1B status are exempt from the cap, as are
H-1B employees working for universities and nonprofit research
centers.
The prospective employee must have the equivalent of
a U.S. bachelor’s degree. The USCIS requires an
educational evaluation for virtually all foreign degrees. There
are many qualified companies who provide this service but, depending
on the employer’s willingness to pay higher fees, this service
could take up to two weeks, possibly delaying the H-1B petition.
Employers may speed the H-1B petition process by using
Premium Processing. The USCIS offers 15-day processing
of H-1B petitions for a $1,000 fee (as opposed to the usual three-month
processing time). However, this does not guarantee an approval,
only a decision. Also, at its discretion, the USCIS may take longer
than 15 days to process the petition, but must then return the
$1,000 fee. Employers should also be aware that, should the USCIS
request any extra information to process the petition (known as
an “RFE”), the petition could take longer than 15
days and the fee is not refunded.
There are some alternatives to the H-1B visa, although each may
have its limitations:
L-1 Visas. For professional employees transferring
from an overseas office or affiliate, the L-1 visa may be a good
option. A limitation of this visa is that there must be an appropriate
corporate relationship between the overseas office and the U.S.
office, and that the proposed transferee must have worked for
the overseas affiliate for at least one year. In most other respects
the L-1 visa offers similar benefits as the H-1B, including a
five- to seven-year limit, and the ability to apply for a green
card while living and working in the United States.
TN Status. For professional employees from Canada
and Mexico, the TN status is also a good alternative. The TN is
available for prospective Canadian and Mexican employees who have
a bachelor’s degree and are coming to the U.S. to work in
certain listed occupations. A limitation of the TN is its one-year
status. Theoretically, it can be extended yearly for a longer
period, but the TN has a practical limit of 3-4 years, in most
cases.
E Visas. If your company is 50 percent or more
owned by nationals of a country which has an E-1 or E-2 treaty
with the United States, your managerial and essential employees
from the same country may qualify for E visa status. While an
alien in the United States in another non-immigrant status (except
visa waiver), can change to E visa status in the United States,
an E visa can only be obtained at a U.S. consulate abroad (generally,
in the alien's home country). E visa status is generally granted
for 2 years at a time, while E visas are issued for five years,
in most cases. Theoretically, two E visas can be extended indefinitely.
As in the case of the spouse of an L-1 visa holder, the spouse
of an E visa holder can also apply for employment authorization
O-1 Visas. For persons of “extraordinary
ability” in the arts, sciences, education, business or athletics.
Extraordinary ability in the arts means “distinction,”
which is defined as a “high level of achievement evidenced
by degree of skill and recognition substantially above that ordinarily
encountered,” to the extent that the person is “renowned,
leading or well-known.” Extraordinary ability in science,
education, business or athletics is a much higher standard and
means a level of expertise indicating that the person is “one
of the small percentage who has risen to the very top of the field
of endeavor.” Extraordinary achievement with respect to
motion picture and TV productions means “a very high level
of accomplishment evidenced by a degree of skill and recognition
significantly above that ordinarily encountered” to the
extent the person is recognized as “outstanding, notable,
or leading” in the motion picture or TV field.
In summary, the H-1B cap for FY2005 is almost upon us. Employers
should seriously consider reviewing their hiring needs for 2005
as soon as possible and consulting with an immigration professional.
The H-1B visas will be going fast, on a first-come, first-served.
Plan now, plan ahead, and avoid the embarrassment of saying to an
ideal prospective employee, “I’m sorry, but can you
wait until next October?”
If you have questions or would like more information,
please contact any member of DWT’s immigration practice team,
including:
This Immigration Law Advisory is a publication of the Employer Services
Department of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent developments
inimmigration law. It is not intended, nor should it be used, as
a substitute for specific legal advice as legal counsel may only
be given in response to inquiries regarding particular situations.
Copyright © 2004, Davis Wright
Tremaine LLP.
return to Advisory Bulletins
main page
|
