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H-1b Specialty Occupation Numerical Limitation: Alternative Visa Solutions

Now that the mad dash for fiscal year 2009 H-1Bs are over, many qualified petitions will never be reviewed by the United States Citizenship and Immigration Services (USCIS) because there were many more petition received than there are visas available.  On April 10, 2008 USCIS announced that its service centers received 163,000 regular cap H-1B petitions for the coveted 65,000 visas available and 31,200 petitions for the 20,000 additional visas available to individuals who have obtained a U.S. masters or higher degree.

A vast majority of applicants and their sponsoring employers will find their petitions rejected.  Many employees whose petition was not selected have a finite amount of time in which they can work for the sponsoring employer, unless an H-1B alternative can be found.  Here are some options that may provide post H-1B relief.

Don’t Overlook the Obvious

a.)    H-1B exempt Employers

Certain employers are exempted from the numerical limitation.  This means exempt employers may file an H-1B at anytime.  Exempt employers include:

·          Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);

·         Nonprofit organizations or entities related to or affiliated with institutions of higher education; and

·         Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C).

b.)    H-1B1: Chilean and Singaporean Specialty Workers

Of the 65,000 H-1B visas, 6,800 visas are set aside during the fiscal year for the H-1B1 program under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements.  1,400 visas are set aside annually for nationals of Chile, and 5,400 for nationals of Singapore.  As such employers wishing to hire specialty workers who are nationals of either Chile or Singapore should apply under the H-1B1 category instead of the general H-1B cap category.

Extend OPT and Try Again Next Year

Employees currently on post-completion Optional Practical Training (OPT) as part of their student visa, may now extend their OPT status.  On April 4, 2008 USCIS announced interim final regulations to extend OPT from 12 to 29 months.  Those individuals working for employers on OPT, whose H-1B petition was not selected for processing, may extend their OPT status and apply for an H-1B again next year.  To qualify for the extension an individual must:

·         Be currently participating in a 12 month period of approved post-completion OPT;

·         have successfully completed a degree in science, engineering, technology, or mathematics (STEM) included in the DHS STEM Designated Degree Program List (see related article in this newsletter) from a college or university certified by the U.S. immigration and Custom Enforcement’s Student and Exchange Visitor Program;

·         Be working for a U.S. employer in a job directly related to the student’s major area of study;

·         Be working for or accepted employment with an employer enrolled in USCIS’ E-Verify program.  E-Verify is a free internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly hired employees; and

·         Have Properly Maintained F-1 status

Employers may wish to consult with a qualified immigration attorney on the benefits and risks of enrolling in E-Verify as there are special issues and unique problems with this program.

Alternative Nonimmigrant Visas

a.)    E-3, an Alternative for Australian Nationals

The E-3 is a new nonimmigrant category available only to Australian nationals who are coming to the U.S. to work in a specialty occupation. The requirements are essentially identical to the H-1B.  If successful the beneficiary may work initially for up to 2 years and the status may be renewed in 2 year increments without limitation as to duration.

b.)    L-1B / L-1A Intracompany Transferee

Companies with an a branch, affiliate or subsidiary abroad may file a petition to qualify a foreign employee for a L-1 intracompany transferee.  The L-1 visa is divided into L-1A, manager or executive and L-1B, a person possessing specialized knowledge.  An employee qualifies for an L-1 visa if they worked in the subsidiary or affiliate abroad for at least 1 year within the last three years at the time of entry into the U.S.   The terms of the L-1 visa impose a limitation on duration of stay, 7 years for L-1A visa holders and 5 years for an L-1B. (See related article in this newsletter)

c.)    E-2 Essential Employee

If an employer’s business is based on E-2 visa status then its “essential employees” may be eligible for E-2 visas to work in the E-2 business.  E-2 visas require a substantial investment into a new or existing business in the U.S. and it is based on a treaty of commerce and navigation between the United States and the E-2 holder’s country.

d.)    J visa, Exchange Visitor

A J-1 is a nonimmigrant visa holder coming to the U.S. as an “Exchange Visitor” to temporarily participate in a program as a “bona fide” student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill.” The sponsoring entity for J visas must be accredited by the U.S. State Department.  Depending on the J visa category listed above, limitation of stay is between 4 months to 36 months.

e.)    O Visa: Alien of Extraordinary Ability

Foreign nationals may qualify for the O-1 visa if they possess an extraordinary ability in the sciences, arts, education, business, athletics, and for those with an extraordinary achievement in the motion picture or television industry. There are three important features of the O classification:

   1. The foreign national has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim or, with regard to motion picture and television productions with a demonstrated record of extraordinary achievement, and

   1. Whose achievements have been recognized in the field through extensive documentation, and

   1. Who and seeks to enter the United States to continue work in the area of extraordinary ability.

The O-2 designation is given to those assisting the O-1 in their artistic or athletic activities. Spouses and unmarried minor children may accompany the O-1 or O-2 visa holder as an O-3.

f.)     Trade Nationals: TN-1 and TN-2

Pursuant to the North American Free Trade Agreement (NAFTA), Canadian (TN-1) and Mexican nationals (TN-2) may enter the U.S. temporarily to “engage in activities at a professional level.” To be eligible for TN status, the foreign national must perform a professional occupation that is listed in NAFTA.  Unless otherwise specified, TN professional occupations require either specific licensure or a baccalaureate degree. TN status is granted for a maximum of 12 months which can be renewed indefinitely so long as the foreign national maintains a foreign residence.

H-1b Specialty Occupation Numerical Limitation: Alternative Visa Solutions / John Mei

John Mei is an immigration attorney and partner with the law firm of Danziger and Mei, LLP located in Woodland Hills, California. Mr. Mei provides clients with solutions in the area business and corporate immigration law. His practice areas include all nonimmigrant visas, labor certifications, schedule A workers, petitions for EB 1 to 3, National Interest Waivers, investor visas such as E-1 / E-2 and EB-5 investor petitions. Mr. Mei’s law firm has represented U.S. companies, multi-national corporations, start-ups, publically traded corporations, hospitals, as well as public and private universities, and foreign investors. He is committed to providing legal services focused on professional ethics and giving clients results through creative legal solutions. Mr. Mei endeavors to build relationships with clients based on trust and communication. As such returning client phone calls and emails inquiries is a priority.To contact John Mei, please visit his firm’s website at: http://www.danzigermei.com/

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