H-1B Cap Reached - What Are
the Options?
As recently announced by VISANOW, US Citizenship
and Immigration Services (USCIS) reached the Fiscal Year
2007 H1B cap on May 26, 2006.
It is important to note that certain H-1B petitions are
unaffected by the cap and will still be processed. USCIS
will continue to process petitions filed that fall into the
following categories:
-
Extend the amount of time a current
H-1B worker may remain in the US.
-
Change the terms of employment for
current H-1B workers.
-
Allow current H-1B workers to
change employers.
-
Allow current H-1B workers to work
concurrently in a second H-1B position.
-
Employees from Chile and Singapore.
-
Employees who hold Master's degrees
from US schools.
In addition, petitions for new
employment are not subject to the annual cap if the foreign
worker will be employed at an institution of higher
education or a related or affiliated nonprofit entity or at
a nonprofit research organization or a governmental research
organization.
There are still many options available
for employers wanting to hire foreign nationals with
specialized knowledge and experience. Other types of work
visas include the TN, L-1, E-3, H-3, and H-2B.
An employee can qualify for the TN
(NAFTA) visa if they are a Canadian or Mexican citizen.
Also, the TN requires that the foreign national be employed
in certain job areas. Therefore, you must check with your
immigration solutions provider to verify if the offered job
falls within the NAFTA regulations. The TN visa is good for
one year and can be renewed indefinitely.
The L-1 visa is for intra-company
transferees from your companies outside the US to the US
Company. To qualify, the employee must have been employed
with your company for at least one of the previous three
years at a non-U.S. firm, corporation, or other legal
entity. Additionally, they must intend on coming to the U.S.
to work at the related entity in the United States, or
oversee the opening of a new entity in the United States
which is affiliated with the non-U.S. entity.
The E-3 nonimmigrant classification
allows for the admission of a temporary worker who is a
national of Australia and is entering the US to perform
services in a specialty occupation. In order to qualify, it
must be demonstrated that the candidate must have a
legitimate offer of employment in the United States, the
position he or she is coming to fill normally requires a
bachelor’s degree or higher, and that the candidate has the
necessary academic or other qualifying credentials.
The H-3 visa may be a viable option for
companies wishing to train overseas employees. This visa is
for workers coming temporarily to the U.S. to receive
training which is not available in the candidate’s country,
will not involve productive employment unless it is
incidental and necessary training, and will benefit the
applicant in pursuing a career outside the U.S. The most
critical part of this application is demonstrating that the
training is not available in the candidate’s home
country.
An H-2B visa is issued to persons
coming to the U.S. to engage in non-agricultural employment
which is either seasonal, intermittent, to meet a peek load
need, or for a one-time occurrence where U.S. workers are
unavailable. Please note that the H-2B is for very temporary
work only, usually limited to 6 to 8 months. Also, the H-2B
requires the employer to advertise in a local newspaper to
demonstrate that no US Workers are available for the job at
issue.
Lastly, your candidate could consider
filing for a B tourist visa. The B visa will allow them to
stay in the US, but they cannot be placed on a US Payroll
because the B visa does not grant work authorization. The B
visa allows an employee to meet with clients and fellow
company workers, negotiate contracts, attend conferences,
and attend training programs.
Employers are encouraged to discuss
specific cases with their legal services provider to ensure
they are aware of the best options for each case.
U.S. Senate Passes Comprehensive
Immigration Reform Bill
On May 25, 2006, the U.S. Senate approved the
Comprehensive Immigration Reform Act of 2006 (S.
2611, sometimes referred to as the “Hagel-Martinez
Compromise”) by a vote of 62 to 36. With the
spotlight on the current illegal immigration
problem, a committee conference comprised of members
of the Senate and the House of Representatives will
inevitably be contentious. VISANOW continues to
closely track the progress of this bill, as many of
the favorable provisions that would serve to raise
quotas and diminish backlogs survived the Senate
debate relatively intact.
Provisions of special interest are:
-
Increase of the
H-1B cap from 65,000 to 115,000 per fiscal year, and
creation of a market-based cap escalator that would take
effect in the fiscal year after years in which U.S.
employers have an increased need for more H-1B
professionals.
-
Exemption of
foreign professionals with a U.S. Master’s degree or
higher from the overall H-1B cap, and extension of the
20,000 advanced degree exemption to those with a foreign
Master’s degree or higher.
-
Exemption of
foreign professionals who earn a medical specialty
certification through post-doctoral training and
experience in the U.S. from the overall H-1B cap.
-
Authorization of
extensions of stay for L-1 visa holders beyond the five-
or seven-year limitation if a labor certification
application or immigrant visa petition has been filed
and pending for more than 365 days.
-
Increase of
post-graduation Optional Practical Training (OPT) to two
years.
Streamlining of the adjudication process for
employment-based immigration and of the labor
certification process for established employers.
-
Provision of
premium processing for the employment-based immigration
petition.
-
Increase of the
employment-based immigration numbers from 140,000 to
450,000 for FY 2007 through 2016, dropping to 290,000 in
2017. Also, the creation of an overall cap of 650,000,
which would include spouses and children.
-
Exemption of the
following categories from employment-based immigration
numbers: 1) aliens with extraordinary ability,
outstanding professors and researchers, and aliens who
obtain a National Interest Waiver; 2) aliens in Schedule
A occupations, such as nurses and physical therapists;
3) foreign nationals with an advanced degree in
mathematics, engineering, technology, or the physical
sciences and working in a related field on a
non-immigrant visa for a three-year period prior to
applying for an immigrant visa (with special labor
certification procedures for those in this category);
and 4) foreign nationals willing to work in occupations
designated by the DOL as lacking sufficient U.S. workers
who are able, willing, and qualified to fill those
positions.
-
Allowance of the
recapturing of unused visa numbers from FY 2001 to 2005,
and creation of a recapture mechanism for unused visas
for future years.
-
Elimination of
immediate relatives (i.e. spouses, children, and
parents) of a U.S. citizen from the number of
family-based immigration visas, thus releasing 254,000
new visas per year.
-
Increase of the
per country quotas for both employment-based and
family-based immigrant visas.
-
Redistribution
of the percentage allocation of visas among the
preference categories, and modifying the definitions of
the preference categories.
-
Amendment of the
diversity immigrant visa program by reserving two-thirds
of the available 55,000 visas for those holding an
advanced degree in science, technology, engineering, or
mathematics.
-
Creation of a
new special immigrant category for widows and orphans at
risk of harm, with expedited processing and a path to
permanent residency.
The bill also
introduces several provisions to be aware of:
-
Authorization of
the construction of additional ports of entry along the
U.S. border.
-
Creation of a
new Electronic Employment Verification System (“EEVS”)
for employers, replacing the I-9 system, requiring all
employers to evaluate the work authorization of
individual employees.
-
Increase of
requirements for aliens to notify the Department of
Homeland Security (“DHS”) of address changes, imposing
fines and/or imprisonment for failure to comply.
-
Authorization of
the DHS to deny visas to citizens of countries that
refuse or delay in accepting individuals ordered removed
from the U.S.
It should be noted
that these are the provisions as passed by the Senate only;
the bill must survive a conference committee faced with the
prospect of reconciling this comprehensive reform bill and
the restrictive enforcement-only bill previously passed by
the House. VISANOW still does not know what the final form
will be or, indeed, if a compromise can be reached on the
more controversial provisions regarding the illegal
immigration situation. We continue to keep a close watch on
this legislation’s progress in the hope that Congress will
succeed in passing these long-awaited reforms of the
immigrant visa situation.
Request For Extension Denied – What Now?
The I-94 is a critical piece in providing evidence of an
individual’s authorized stay in the US. While the I-94 is
issued whenever a nonimmigrant enters the U.S., an I-94 is
also often attached to the 797 Notice of Approval issued
when an extension of nonimmigrant status is approved. This
allows the nonimmigrant to hold valid proof of status after
an extension without the need to leave and re-enter the U.S.
Sometimes, however, the request for extension is denied.
This is one circumstance in which the 797 approval notice
will not bear a new I-94. In such cases, the 797 approval
notice will additionally include a Notice of Decision that
describes the reason for which the request for an extension
was denied. However, it is important to note that in this
situation, the nonimmigrant’s request for status (e.g. H-1B,
L-1B) was not denied, but rather the USCIS has denied the
request for an extension itself.
While often burdensome, this situation is easily remedied.
The nonimmigrant simply needs to attain a new I-94 showing
their extended status by re-entering the U.S. Before they
can begin work in the new status, the nonimmigrant will need
to leave the U.S. and attain a visa stamp by making an
appointment at the US Embassy in the foreign country
visited, preferably their home country. Once the visa stamp
is attained, and the individual re-enters the U.S., they
will be issued a new I-94. The new I-94 will likely bear the
very same expiration date as the newly-extended status. With
the new I-94 in hand, the nonimmigrant is now free to spend
the remainder of their approved status in the U.S., without
incident.
The Heat Is On; Don’t Get Left Out
In the Cold: Summer Travel Tips
Recent world events have left little room for error or
forgetfulness, especially when it comes to traveling.
Increased security at airports, consulates, embassies, and
ports may leave foreign nationals scrambling for
identification and documentation which may cause delays to
travel or block the ability to leave or re-enter the U.S.
Below are some helpful guidelines to make sure their trips
run smoothly during the summer months.
First and foremost, passports need be valid for at least six
months after the expiration of their admission to the U.S.
Keeping a valid passport will ensure swift entry and
departure from the U.S. to their home country or another
country. The Department of Homeland Security has also
announced the Western Hemisphere Travel Initiative where
U.S., Canadian, Mexican, and British Overseas Territory of
Bermuda will be required to have a passport or other
accepted document to enter or re-enter the U.S.
A valid visa allows foreign employees to apply for admission
into the United States when first arriving at an airport in
the United States. The visa stamp in a passport must be
valid and reflect the current visa status held. At this
time, the U.S. Customs and Border Protection (USCBP) decides
if a foreign national can be admitted to the United States
and the duration of the stay. It is important to note that
before a visa stamp is issued, all visa applicants must
appear for fingerprinting and photographs so that biometric
visa stamps may be issued. If a stay in the United States
passes the expiration date of a visa, the visa may be
cancelled. Due to the events of September 11, 2001 and the
consequential heightened security, the U.S. government now
tracks any overstays on a visa.
If they are applying for adjustment of status to permanent
residence and wish to leave the United States, the foreign
worker must obtain advanced parole. This permits reentry
into the United States after international travel. Those who
are applying for advanced parole based on a pending
application for adjustment of status must be approved for
advanced parole prior to leaving the United States in order
to keeping their application pending. Those who are in H-1B,
H-4, L-1A, L-1B, or L-2 status are allowed to reenter the
United States on their current visa without applying for
advanced parole.
Premium Processing Still not
Available for Form I-140
In late 2001, the USCIS first indicated that
they might provide premium processing for Form I-140,
Immigrant Petition for Alien Worker. The Form I-140 is the
application filed upon approval of a labor certification
application. Since this original announcement, the USCIS has
not offered any further information on such a program. On
May 23, 2006, however, the USCIS published a notice in the
Federal Register, designating Form I-140, Form I-539,
Application to Extend/Change Status, and Form I-765,
Application for Employment Authorization, as eligible for
premium processing. The notice does not mean that premium
processing is currently available for these forms, but that
it is likely that it will be in the near future. We will
keep a close eye on the situation and make an announcement
as soon as premium processing becomes available.