Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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H1b-Cap Reached - Immigrants Search for Alternatives

Just as we reported in our article last week, the USCIS on October 1, 2004, announced that the 65,000 H1-B cap has been reached. This means that no new H1-B change of status will be issued until October 1, 2005. This short piece will explain what the cap really means and suggest possible alternative non-immigrant visa options to consider.

Despite the cap being reached, the USCIS will process all applications for new H1-B employment that were received by October 1, 2004. All petitions for first-time employment received on the 2nd or thereafter will be rejected and returned to the petitioner. Petitioners may re-submit the original application, or file new petitions, on or about April 1, 2005 for new employment that is expected to begin in fiscal year 2006.

The fact that the cap has been reached does not prevent the mobility of current H1-B employees. The portability provisions of the H1-B law are not affected by the cap. Thus, persons currently in H1-B status can be hired and change employers should they so desire. Employers can likewise 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 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, 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. We actually published an in-depth discussion on this type of visa in our article last week. 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 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 2005, 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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