Flynn & Clark announcement on H-1B cap

Flynn & Clark announcement on H-1B cap

As we predicted, H-1B numbers have run out. Ironically, H-1B’s ran out on October 1st, the first day of the government fiscal year 2005. In a press release dated October 1st, 2004, USCIS announced that it had received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2005, and that it would not accept any new H-1B petitions that are subject to the FY 2005 annual cap.

How this affects you

Companies who employ or wish to employ foreign nationals as H-1B professionals need to understand how this affects them and what their alternatives are. Let’s look at the following key points:

• Not all employers are affected by the cap

• Not all employees are affected by the cap

• Alternatives to the H-1B exist for which some companies / employees can qualify Absent other alternatives, when can new H-1B petitions be filed?

Not all employers are affected by the cap

Petitions for new H-1B employment are not subject to the annual cap if the alien 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. Those petitioners are exempt from the cap. NB: not all nonprofits are exempt; only those affiliated with an institution of higher education. If your organization falls into one of the exempt categories, the H-1B cap does not apply to you and you may continue to sponsor persons for new H-1B employment. If you are in doubt about whether you qualify, you should consult your attorney.

Not all employees are affected by the cap

Workers who are currently in H-1B status are largely unaffected by this cap. The cap only affects petitions for new H-1B workers. Thus, petitions for current H-1B workers (it is possible to look back into the prior 6 years) do not count towards the congressionally mandated H-1B cap. Employers may continue to file petitions for:

• Extending H-1B status for a current H-1B worker

• Changing the terms of employment for current H-1B workers

• Allowing current H-1B workers to change employers (unless the prior employer was exempt from the cap)

• Allow current H-1B workers to work concurrently in a second H-1B position

• Employing nationals of Singapore/Chile (until their separate cap is reached)

This means that the employer can continue to sponsor and hire persons who are already working in valid H1B status at other companies and can continue to extend / amend the status of current H-1B employees.

What the non-exempt employer cannot do is to petition for persons without any H-1B status, such as for example persons in F1 student status. As a practical matter, this will affect many for-profit companies who are now employing individuals in F1 Optional Practical Training (OPT).

Alternatives to the H-1B exist for which some companies / employees can qualify

Some individuals may qualify for more than one type of immigration status permitting them to work. Until now, many companies have considered only the H-1B without looking more deeply into whether another status might also be viable. We offer a brief outline of some of the principal other alternatives. We have successfully used all of these alternatives for our clients. If you feel one or more of them may potentially apply to you, please contact your attorney.

L1 – The L1 visas (multinational manager/executive or specialized knowledge) are for employees who have worked abroad for a parent, subsidiary or affiliate of the US petitioner for at least 12 months out of the previous 36 months.

TN – TN status is for certain specified occupations for citizens of Canada and Mexico.

O1 – The O1 visas are for persons of extraordinary ability in various fields.

J1 – there are different types of J-1 visa, the most interesting of which are for traineeship positions where either the employer or a third party may be the J visa program sponsor.

E1/E2 – US employers who are subsidiaries or affiliates of foreign companies may be able to sponsor persons of the same nationality for E1/E2 Treaty Trader/Treaty Investor visas, depending on whether and what kind of treaties exist between the US and the specified foreign country. We can also assist in situations where a foreign national is establishing a company which can be a basis for an E1/E2 visa.

R-1 – persons doing professional work of a religious nature may qualify for R1 visas.

EAD (Employment Authorization Document) – Some persons are eligible for employment authorization for other reasons. One example is that the spouse of an E1/E2 visa holder or the spouse of an L1 visa holder has the right to an EAD. Some persons are eligible to file I-485 applications for adjustment of status for various reasons. A person with a pending I-485 has the right to an EAD. Common reasons may be:

• The person will be the beneficiary of an I-130 by a US citizen spouse

• The person’s spouse is the beneficiary of a current employment or family petition

• The person is eligible to self-petition – for example, for a National Interest Waiver or as a person of Extraordinary Ability, and concurrently files an I-485 with the I-140.

Talk to your Flynn & Clark attorney to find out more about these and other alternatives. Because of the time involved in case preparation, and the delay in issuing an EAD after filing for it, you should talk with your attorney about this several months in advance of the anticipated need for the EAD

Absent other alternatives, when can new H-1B petitions be filed?

Employers may re-submit their petitions when H-1B visas become available for FY 2006. Fiscal year 2006 runs from October 1, 2005 until September 30, 2006. USCIS will accept and adjudicate petitions in advance of the start date, but not earlier than 6 months in advance. Thus, the earliest date a petitioner may file a petition requesting FY 2006 H-1B employment with an employment start date of October 1, 2005, would be April 1, 2005.

If you have persons employed as F1’s on OPT for whom you would like to file petitions for H-1B employment, you will want to be certain to file the H-1B as soon as possible in April 2005. Allowing for case preparation time, you would want to open those cases in February or early March 2005. If approved, those persons can begin working in H-1B status no sooner than October 1, 2005. This does not necessarily mean that the person can remain in the US after the F1 OPT expires and before October 1. These matters should be discussed on a case by case basis with your attorney.

What else can be done?

You can contact Congress. As the President of the national immigration bar (AILA) several years ago, I led the lobbying effort to raise the number of available H-1B’s. During those years, the cap was not an obstacle for US companies, and employers could petition for an H-1B at any time of year, as required by the needs of the business. Some years used a lot of H-1B’s and some used less, fluctuating according to natural market forces. Now the number has reverted to the previous 65,000 annually for the entire United States (reduced to 58,200 because of Congressional set-asides for Singapore and Chile). This is no longer sufficient to meet the needs of US employers.

Only Congress can increase H-1B numbers. If your company or your industry is at a disadvantage because of the H-1B cap, now is the time to let Congress know about it. If you are losing top talent to foreign employers, and if it is hurting your ability to compete in world markets, now is the time to let Congress know. If lack of H-1B numbers will influence you to outsource jobs and to have this work done abroad, now is the time to let Congress know. Congress has been considering legislation to exempt certain individuals from the cap. These would be graduates of U.S. universities who have earned a Master's degree or higher. You can use the link below to send emails to your U.S. Senators and Representatives urging them to provide an exemption from the H-1B cap for this reason:

capwiz.com/aila2/mail/oneclick_com/?alertid=5183421

More information about contacting Congress can be found at www.congress.org/congressorg/home

Your Flynn & Clark attorney can give you significantly more details on current ways to support lobbying efforts.

How can I get more information?

Talk to your Flynn & Clark attorney. We are staying on top of developments in this area. Flynn & Clark has long experience in these matters and a successful track record in each and every one of the H-1B alternatives mentioned above. We can help you decide which one gives you the greatest probability of success and we can prepare it for you properly and quickly. Contact us today.

STEVEN A. CLARK

FLYNN & CLARK, P.C. provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association which has 8000 members worldwide. The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions. If you have questions about the information contained in the Immigration Update or would like to know more about our Immigration services and nationwide visa processing capabilities, please visit our website, or contact Darlene Dinardo in Cambridge.