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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.
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