Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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H1-B Cap Is Reached—Alternatives To Pursue

Our last H1-B article focused on employers, employees and lawyers that knowingly file fraudulent H1-B petitions. While the article highlighted the pitfalls of so doing, one vital point was inadvertently omitted, namely: the rampant and unfortunate H1-B fraud uses up and wastes the already shortened supply of H1-B visas and detracts from the very purpose of the visa to begin with; keeping and bringing educated professionals and their families to the United States. Now, the government has announced that the H1-B cap has been reached. In short, no new H1-B changes of status or visas will be issued until October 2004. That the H1-B cap being reached as a signal that change is needed will have to be read somewhere else. This short piece will explain what the cap truly is and suggest possible alternative non-immigrant visa options to consider.

Despite the cap being reached, the USCIS will process all applications for new (first-time) H1-B employment that were received by February 17, 2004. All petitions for first-time employment received on the 18th or thereafter will be returned to the petitioner, with filing fees. Petitioners may re-submit the original application, or file new petitions, on or about April 1, 2004 for new employment that is expected to begin in fiscal year 2005-October 1, 2004.

That the cap has been reached does not prevent the mobility of current H1-B employees. Put differently, the portability provisions of H1-B law are not affected by the cap. Thus, persons currently in H1-B status can be hired/change employers should they so desire. Employers can hire those already in H1-B status and file new petitions for them. 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 an obtained. In short, the H1-B cap only applies to first time new employment petitions.

So, whether you are an employer or she who seeks to be employed, what are your options? Though easy to say, but difficult to come by, the B-1 business visitor visa is an option. So to is the student visa. 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, recent changes in student visa law require one's revelation concerning student intentions at the port of entry. In other words, the intending student, post-graduate or otherwise, if not already accepted into a school program, will need to reveal student intentions to the inspections officer when arriving in the United States. Said intentions would be duly noted on the I-94 arrival and departure card.

Another option 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 or art and 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 plan 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. Third country processing for E visas in Nogales, Mexico is also a consideration not to be overlooked, nor taken lightly. 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 is family and employment based immigrant visa options that one may wish to consider, however, said options, will be explained and explored in upcoming articles.

In short, although the H1-B cap has been reached for FY 2004, 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. Immigration laws are tough and the government is becoming increasingly strict in its enforcement/approval of cases. The foregoing notwithstanding, one thing remains steadfast: legitimate cases are approved at one level or another and legitimacy begins with you.

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