Immigration Law Advisory Bulletin
FY2005 H-1B Cap is Closed
By Christopher
R. Helm, James
M. Mei, and Richard
M. Rawson
[Oct. 2004]
In our last alert, we wrote about the H-1B cap and
alternatives to the H-1B visa. On Friday, Oct. 1, 2004, the United
States Citizenship and Immigration Services (USCIS) reported that
it had received enough petitions to meet the 2005 quota. Any petitions
properly filed and "in the pipeline" before Oct. 1 should
not be affected by the FY2005 cap.Any petitions filed after Oct.
1 will be returned, with the filing fee. This means that there will
likely be no new H-1Bs available until Oct. 1, 2005. In view of
this situation, we would like to revisit the alternatives to the
H-1B visa.
What Can Your Company Do?
The impact of the H-1B cap will be felt by many employers of foreign
professionals. However, the cap does not affect all 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.
There are some alternatives to the H-1B visa, although each has
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 United States 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.
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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