Immigrant visa considerations

Source: 
Krupin O'Brien LLC

Fortunately, employers do have options. Although the H-1B1 cap has been reached for Fiscal Year '06, certain types of H-1B1 Petitions are exempt from the cap, and may therefore still be possible for both Fiscal Year '05 and '06.

First, employees who have previously been granted H-1B1 status, and who still have time remaining on the six-year limit of stay, continue to be eligible for extensions of stay. The cap does not apply to requests for extensions of previously granted H-1B1 classifications. Similarly, requests for extensions of stay beyond the six-year limitation, which are now possible provided that the process of applying for U.S. permanent residence has begun prior to the end of the fifth year of stay, are also not subject to the cap.

Second, H-1B1 Petitions on behalf of individuals who are already present in the United States pursuant to an H-1B1 Classification sponsored by a different employer are considered to have already been counted against the H-1B1 cap, and thus are exempt from being counted a second time. Therefore, employers may still file for H-1B1 Petitions to "transfer" the new employee's existing H-1B1 to authorize employment, without regard to the cap. In addition, under current U.S. law, H-1B1 "portability" allows an employee with an existing H-1B1 classification to begin work for the new employer as soon as an H-1B1 transfer petition is filed with USCIS. Thus, for employers seeking to transfer an H-1B1 classification for a new employee previously approved for H-1B1 employment with a different employer, an H-1B1 transfer is a very effective and efficient tool.

Third, individuals who have been previously approved for H-1B1 classification, but who have since departed the United States, or obtained a different Nonimmigrant Classification, may, under the right circumstances, still be eligible to revive the previously approved H-1B1 classification, and therefore obtain H-1B1 employment authorization within a matter of a few days.

Fourth, current U.S. law exempts from the cap H-1B1 petitions filed by the following types of employers: institutions of higher education, non-profit research organizations, and governmental research organizations. These types of employers may continue to seek H-1B1 classification for any type of professional employee who would otherwise qualify for H-1B1 classification (i.e., the employment does not specifically need to be a research or teaching position, but may be any professional position which would otherwise qualify for H-1B1 classification), and the cap will not apply.

Fifth, under two separate Free Trade Agreements (FTAs), 6,800 H-1B1 visas were set aside out of the existing cap for citizens of Chile and Singapore (note that this set-aside of over 10% of the existing limit contributed to the early exhaustion of H-1B1 visas). Any Chilean or Singaporean nationals sponsored for H-1B1 classification pursuant to the terms of the FTAs are subject to the same legal standards as any other H-1B1 classification. Interestingly, however, a Petition to the CIS is not required if the sponsored individual is outside of the U.S.; the application is made directly to a U.S. Consulate for a visa. This exemption from the H-1B1 cap is potentially of great utility to U.S. employers with business, investment, customer and/or recruitment ties to either of these two countries.

Finally, since the H-1B1 cap was reached, Congress authorized an additional 20,000 H-1B1's per fiscal year which may be granted to graduates with a Master's Degree or higher from U.S. universities. Such H-1B1 visas are still available as of this writing, but employers considering candidates for employment with U.S. Master's Degrees or higher should make sponsorship decisions quickly. As of August 12, 2005, CIS said that it had received petitions against this 20,000 cap for about one-half of the FY '05 allocation, and for about 8,000 of the FY '06 allocation. Thus, it is clear that this is an alternative to the H-1B1 cap which is increasing in popularity, and conceivably could reach it own limit soon.