On April 1, 2009, employers will be eligible to begin filing new H-1B petitions with the U.S. Citizenship and Immigration Services (“USCIS”) for Fiscal Year 2010, which begins October 1, 2009. The quota (more commonly referred to as the “cap”) for new H-1B petitions is 65,000 per year, and of that number, 6,800 visas are automatically set aside for qualified foreign nationals from Chile and Singapore based on Free Trade Agreements with the United States. An additional 20,000 H-1B visas are available to candidates with a U.S. Master’s Degree.
Over the past several years, USCIS has received several thousand petitions in excess of the cap limit within the first two days of filing. As such, USCIS created a random lottery system, for which it will only accept for adjudication those petitions selected in the lottery. Last year, USCIS extended the lottery period from two days to a five-day period during which petitions are received to be included in the consideration for the H-1B lottery. To prepare for this year’s April 1, 2009 filing deadline, we highly recommend that you contact us now to begin preparing your H-1B petitions for timely filing.
It is important to note that the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B nonimmigrant professionals seeking to file an extension of stay, a transfer petition, a petition seeking employment with an institution of higher education, a petition seeking employment with a nonprofit research organization or government research organization, and/or certain petitions for physicians (who previously held J-1 status and have applied for a waiver of the two-year residence requirement based on service in an underserved area) are not subject to the cap. However, should your employer change from an “exempt” employer to a “non-exempt” employer, such change will likely make all such petitions subject to the cap.
While Multiple Filings/Duplicate Petitions Will Be Denied; USCIS Does Not Prohibit Your Company And An Affiliate From Filing H-1B Petitions On Behalf Of The Same Employee
Due to unfair abuse of the system, USCIS announced last year that it will now deny all petitions where it finds multiple filings by the same employer for the same employee. A petition filed by another employer, with its own Federal EIN, however, is not deemed to be a duplicate petition by USCIS. Should you feel you are eligible to file a petition on behalf of an employee by more than one entity within your group of affiliated companies, please contact us to discuss this option in further detail.
Other Important Options/Considerations For Employers Filing New H-1B Petitions in April of 2009:
A. OPT Extended for Certain Foreign Students
1. In April 2008 the U.S. Department of Homeland Security (“DHS”) released a final rule extending the period of Optional Practical Training (“OPT”) for all F-1 students with pending H-1B petitions. In other words, if the F-1 student’s petition is selected in this year’s “H-1B lottery”, his/her work authorization will automatically be extended through October 1, 2009 (the effective date of the H-1B approval) so long as the petition is pending or has been approved. By automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions [eligible students must be selected in the H-1B lottery] there is no longer the problem of expired work authorization while the F-1 students’ H-1B petitions are adjudicated.
2. Another aspect of the rule extended the period of Optional Practical Training (“OPT”) from 12 to 29 months for qualified F-1 non-immigrant students. These OPT extensions are available to F-1 students with a degree in science, technology, engineering, or mathematics (“STEM”) who are employed by businesses enrolled in the E-Verify program.
The Immigration Law Group of Meyner and Landis LLP has substantial experience with the E-Verify system. We are available to: enroll your business in E-Verify to minimize the potential for errors; prepare a written E-Verify compliance program tailored to your business; train managers on the implementation of the E-Verify compliance program, including mandatory posting requirements, profile updates and termination provisions required by law; and train managers on the administration of the E-Verify system to diminish the potential for discrimination claims or suits brought by employees. By utilizing a “team approach”, we will partner with owners, managers, in-house counsel and/or human resource personnel to set in place the proper immigration compliance program, or, if preferred, we can administer and manage your business’ E-Verify program entirely.
B. Viable Alternatives To The H-1B Petition:
Since there should be no question that the H-1B cap will be met this year (as quickly as ever), the Immigration Law Group of Meyner and Landis LLP encourages employers to consider all work-related visa classifications. Depending on your business, there are potentially a number of other visa options available, many of which are processed faster than the H-1B. Some of those options are as follows:
The TN Visa category was created as part of NAFTA and allows skilled Canadian and Mexican workers to take employment in the U.S. relatively quickly. A broad range of professions qualifies for the TN but most require a college degree.
The L-1 Visa category is available for a company which is owned by or owns a foreign operation. Employees may be brought to the U.S. on an L-1 visa, which allows managerial or executive level employees or workers with specialized knowledge to enter the U.S. to work for the affiliated U.S. company.
The E Visa is available for temporary workers engaged in international trade or investment between the United States and their respective countries of nationality to travel to and work in the United States.
The E-3 Visa, which is fairly similar to the H-1B visa, permits Australian citizens, who are professionals, to work in the U.S. under a treaty signed by President Bush in 2005. Interestingly, dependents of the E-3 Visa applicant (spouse and children) need not be Australian citizens. Distinct from the H-1B, dependents of E-3 Visa holders are entitled to work in the United States.
The O Visa category enables an individual with extraordinary ability in the area of the sciences, arts, athletics, education, or business to travel to the United States and work in that area of extraordinary ability.
The P Visa categories (P-1, P-2 and P-3) are reserved for foreign nationals who will be coming to the U.S. to perform in athletics or entertainment, and who do not meet the extraordinary ability standard required for classification in the O Visa category. The P category covers foreign national athletes who compete individually or as part of a team at an internationally recognized level, as well as foreign nationals who perform with, or, are an integral and essential part of the performance of, an entertainment group that has received international recognition as “outstanding” for a “sustained and substantial period of time.”
The B-1 Visa category permits individuals to visit the United States for business or pleasure.
Our Immigration Law Group has over 25 years of experience with all work-related visa classifications (B, H-1B, H-2B, H-3, L-1A, L-1B, E-1, E-2, TN, O, P), as well as all immigrant visa categories, including obtaining a green card through the alien labor certification process (PERM). Should you have any questions with regard to the H-1B cap, or would like to speak with an attorney about alternatives to the H-1B visa, please do not hesitate to contact us.
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