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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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