Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
One Practice. One Focus. One Passion: Immigration Law.


On August 10, 2005, the government announced that the 65,000 (including visas specifically reserved for Singaporean and Chilean Nationals) H1-B cap has been reached. Absent new developments, this means that no new H1-B change of status will be issued until October 1, 2006, namely the beginning of fiscal year 2007. And, you would have to be in status until this time in order to change your status in the United States. Otherwise, you would be required to consular process.

The alternatives suggested in this article are for information purposes only. The article is directed not only to you, but to your lawyers, for they too read our articles. Those lawyers that were sloth like in filing your application, despite being timely hired to do so, are likely illegally and unethically suggesting that you extend your tourist visa. Don't listen to them because the extension application would be denied. And, rightfully so. Instead, ask them for the alternatives presented herein. In fact, you may want to ask them if they read this article.

First things first. Persons changing employers are not subject to the cap nor are advanced degree (Masters or higher) recipients from US Schools. Similarly, one already in (part-time) H1-B status can apply for a second (part-time) H1-B position, and H1-B extensions may be filed and obtained. In short, the H1-B cap only applies to first time new employment petitions.

Another option to consider is to find a petitioner that is exempt from the H1B cap. This special group of petitioner's not subject to the H1B quota are educational institutions and non-profit organizations.

The F-1 or student visa is also an option. This status enables one to stay in the U.S. for the entire duration of his studies. If you or your relatives are overseas and contemplating attending a United States school, one might consider coming to the United States to explore educational opportunities. If this is a viable option and one already has a visitor's visa to come here, the traveller must reveal his or her intentions as an "intending student" or "here to look at schools" to the Officer at the port of entry. If the revelation is made, a notation will be made on the I-94 arrival departure card. Without notation, one cannot change status.

Another option that we have stressed before is the E-1 or E-2 treaty trader or investor visas. Treaty-trader visas require that "substantial" trade be conducted between the United States and the treaty nation while the treaty investor visa requires that a "substantial" amount of money be committed and "at-risk" in the United States. While the term substantial is a term incapable of precise definition, the amount of trade and/or money invested in the United States must past the "smell test". If it smells substantial, it normally is. Supporting documentation in the E visa context is integral to the success of the case. One such document is a precise and detailed business plans that details the intentions of the investing or trading individual/company. These types of cases can be processed on the premium schedule and if in the United States, can therefore be achieved within approximately 30 days. If outside the United States, the E visa is unlike any other, in that no prior approval is necessary; the E visa applicant simply presents all supporting documents to the United States Embassy in Manila. The treaty investor visa is not to be confused with the immigrant based EB-5 category, colloquially known as the million-dollar green card.

The L-1 intra-company transferee is also a viable option so long as the parent subsidiary company relationship may be established and the visa applicant can prove that he has been employed in a managerial, executive, or specialized knowledge capacity for at least one out of the past 3 years.

Obviously, there are family and employment based immigrant visa options that one may wish to consider, however, said options, will be explained and explored in upcoming articles. As you know, TNT is not status.

In short, although the H1-B cap has been reached for FY 2006, there are other viable options that one may wish to explore. In assessing your options, it is important, if not essential, to keep in mind the following: visitor visas are only extended for bona fide health or travel reasons. Wanting to stay in the United States long enough to find work is not such a reason. If your lawyer suggests trying to extend your tourist visa they are more concerned with your money than you. And, if they describe it as the only option that's available to you, be careful for they will close the door on any options for you in the future.

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