Are Your Corporate Clients Ready For The H-1B Visa Stampede?
by Dan White
Companies use the H-1B visa to employ foreign national professionals in engineering, information technology, finance and other fields requiring a bachelor’s degree or its equivalent for entry-level work. Due to the quota, the H-1B visa is unavailable most of the year and the April opening of the filing window triggers an employer stampede.
The H-1B visa filing window opens April 1. If petitions exceed the quota during the first five business days of April, a lottery will be held with a selected petition enabling an H-1B employee to begin work Oct. 1. The quota will indeed be exceeded this year (see the table below). In many instances, the April filing window provides the only opportunity for an employer to obtain an H-1B visa for a prospective employee. An H-1B allows a cumulative six years of physical presence in the United States and is a superior work visa in that it is extendable in certain instances beyond the six-year limit to permit completion of a green card. It is therefore critical for employers to have their pre-filing labor clearances approved and their petitions ready for inclusion in the April filing window.
The H-1B quota allows 65,000 visas per year, with an additional 20,000 H-1B visas available to holders of an advanced degree from a U.S. university. The 20,000 U.S. advanced degree petitions are randomly selected first. The remaining petitions – including all unselected U.S. advanced degree petitions – compete for the remaining 65,000 slots. Fortunately, an unselected petition is returned to the employer along with the USCIS filing fees. Here is the recent data (it’s not pretty):
An employer should assess in advance the options available if a candidate is not selected in the H-1B lottery. For example, many employers seek to hire a U.S. university graduate. STEM graduates can extend their work permission for an additional 17 months beyond their initial 12-month post-graduation work authorization.
This extension enables them to be sponsored for an H-1B petition again in the following year if their petition is not selected. However, the STEM extension often must be filed before the lottery result is known and the employer must be an E-Verify employer.
In addition to the STEM extension option above, an employer should consider the following alternatives if the H-1B petition is not selected:
- For Canadian and Mexican professionals, a TN visa.
- For an employee who has worked abroad for the foreign parent, subsidiary or affiliate continuously for at least one year within the preceding three years as an executive, manager or in a specialized-knowledge capacity, an L-1 visa.
- For an individual meeting the extraordinary ability criteria, an O-1 visa.
- For a national of Australia, the E-3 visa.
- For a national of Chile or Singapore, the H-1B1 visa.
- For an employee who holds the same nationality as the ultimate owner(s) of the foreign parent company and will be a manager, executive or essential skills employee in the United States, an E-2 visa.
- For an F-1 student, continuation of F-1 studies and pursuit of an internship under curricular practical training (CPT).
- For an individual entering a structured training program, an H-3 visa.
- For an exchange visitor, a J-1 visa.
An individual who is transferring an H-1B visa from their current employer to another company is exempt from the annual quota and can transfer any time during the year. They may begin work for a company as soon as the transfer petition has been filed and they are not required to wait until the petition is approved to begin work. The following petitions are also exempt from the H-1B quota: (1) petitions filed on behalf of current H-1B workers to (a) extend the amount of time that they may remain in the United States, (b) to change the terms of employment at their current job, or (c) to work concurrently in a second H-1B position; and (2) petitions filed by (a) institutions of higher education or a related or affiliated nonprofit entity or (b) nonprofit research organizations or governmental research organizations.
In recent years, five companies have accounted for more than 25 percent of all H-1B lottery selections (Infosys, Tata, Cognizant, Accenture and Wipro). The H-1B quota grew as high as 195,000 before returning to the current 65,000 level under a sunset provision in 2003. The advanced degree quota was then introduced in 2005 to address the “brain drain” issue. Clearly, Congress and the USCIS should rethink the H-1B visa quota and selection system. Until then, employers need to be ready for action on the first business day of April.
About the Author
Dan White leads the law practice at The Immigration Group in Nashville, focusing exclusively on work visas and green cards for companies nationwide. He is a 1981 graduate of Vanderbilt Law School and holds an AV rating. He is a member of the American Immigration Lawyers Association and his writings have appeared in the National Law Journal and the Tennessee Bar Journal. Learn more at http://www.immigrationgrp.com.
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