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Making the H-1B Visa Quota: USCIS Receiving H-1B Visa Applications for Fiscal Year 2013 at an Accelerated Pace

Monday, May 14, 2012

By Karen-Lee Pollak, Bell Nunnally & Martin LLP

Karen-Lee Pollak leads Bell Nunnally & Martin LLP’s immigration practice, providing legal immigration counsel to large corporations, small businesses and individuals. She focuses her practice on both family and corporate based immigration matters obtaining immigrant and non-immigrant visas for foreign workers wanting to live and work in the United States. Pollak also assists corporations in compliance audits and immigration-related corporation policy formulation. She can be reached at karenlp@bellnunnally.com, or via the firm’s websitehttp://www.bellnunnally.com.  

On April 1, U.S. Citizenship and Immigration Service (USCIS) began accepting H-1B visa applications for fiscal year 2013, which starts on Oct. 1.

The H-1B visa program enables U.S. employers to hire highly educated foreign professional workers for “specialty occupations”—jobs that require at least a bachelor’s degree or the equivalent in the field of specialty. These foreign workers provide needed specialized or unique skills, fill a temporary labor shortage and/or supply global expertise. Holders of these visas can stay in the United States for up to six years. H-1B visas can be extended beyond six years where the alien beneficiary has an approved I-140 (Petition for Immigrant Worker) but due to the backlog in issuing visas does not yet have a visa number available to them. This often occurs where the immigrant is a national of a country that has more visa applicants than visas available each year, such as Mexico, China, or India.

As of May 4, USCIS had received 32,500 petitions for H-1B visas subject to the 65,000 visa cap for fiscal year 2013. The agency had received 13,700 petitions toward the separate 20,000 cap for H-1B guestworkers with advanced degrees.

USCIS saw an uptick this year in the number of H-1B petitions filed, with 17,400 petitions filed toward the cap as of April 9 (6 WIR 233, 4/16/12). As of April 22 last year, USCIS had received only 8,000 petitions toward the 65,000 visa cap (5 WIR 228, 5/2/11).

Several years ago it was common for the H-1B cap to be met on the first day petitions were accepted, six months before the Oct. 1 start of the next fiscal year. In 2008, USCIS received approximately 163,000 petitions during the five-day filing period and conducted a random lottery to select the 65,000 petitions that would be eligible for processing (2 WIR 230, 4/21/08). In 2007, USCIS reached its H-1B visa quota in one day. Last year, with the downturn in the economy, the cap was only reached in November.

EMPLOYER PLANNING

Employers should plan ahead when seeking an H-1B visa. There are certain aspects of the application process that are beyond the employer’s control and may delay the timely filing of an application. First, obtaining a certified Labor Condition Application (LCA) is no longer immediate upon submission online. The LCA contains several attestations by employers including an attestation that they will pay the H-1B employee the prevailing wage for the job position.

Now employers have to submit the LCA to the Department of Labor and wait up to seven days if not longer to obtain an approved LCA. Many employers have already experienced delays in obtaining an approved LCA where the Department of Labor cannot verify the employer’s tax identification number and requests additional documents before providing an approved LCA.

In addition to gathering all standard supporting documents required for the H-1B petition, such as catalogues or brochures on the company, financials, and proof of the beneficiary’s education and work experience, employers who place workers at third-party client sites or who are information technology consulting and staffing companies should also present additional evidence to establish the employer-employee relationship and that a job is available to the beneficiary of the petition.

On March 12, USCIS issued a revised Q&A on the Neufeld Memorandum dated January 8, 2010, which addressed some of these issues. In this revised Q&A, USCIS states:

“A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training and counseling for the beneficiary.”

Although this recent revised guideline does state that it is not necessary to provide a letter from the end-client stating that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location, it is prudent to do so. The employer should submit the contract with the end-client and/or the above letter where possible. It should also produce other evidence of an employer-employee relationship such as mechanisms to review the employee’s performance, evidence of company tools issued to its workers, proof of W-2′s for current employees and/or eligibility for medical insurance or to enroll in a 401(k) plan. The memorandum also provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.

USCIS will also continue to use its web-based Validation Instrument for Business Enterprise (VIBE) tool. This tool uses public information including Dunn & Bradstreet reports and previously accumulated third-party data to validate data about petitioners filing employment-based immigrant and non-immigrant petitions.

Careful consideration should be given to employees in Optional Practical Training (OPT) status that may expire in May or June 2012. In past years, Congress provided relief in the form of a “cap-gap” to allow an employee who has an H-1B approved at the time that their OPT expired to stay and work in the United States until October 1 when they could first work in H-1B status.

Employers may also be able to extend OPT for Science, Technology, Engineering and Mathematics students (STEM). However, in order to be eligible for these extensions, employer must be registered with E-Verify, the federal government’s electronic employment verification program.

CAP EXEMPTIONS

H-1B visas are limited to 65,000 per year. However, certain cases are exempt from the cap.

This numerical limit is further reduced by free trade agreements that specifically allocate 6,800 H-1B visas for nationals of Singapore and Chile, making only 58,200 visas available in the standard H-1B pool. After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2013 fiscal year.

The following cases are exempt from the H-1B cap: 1) extensions for current H-1B workers, whether for a new or existing employer in sequential employment situations; 2) concurrent employment in a second H-1B position; 3) amended petitions; 4) H-1B employment for nationals of Chile or Singapore; 5) petitions for new employment at an exempt organization such as a nonprofit research organization, an institution of higher education or an affiliated nonprofit entity; and 6) 20,000 H-1B visas for graduates of U.S. universities who have earned a masters or higher degree.

MAKING THE H-1B CUT-OFF

The diligent employer will be well-served in starting to consider their H-1B employment needs for the upcoming fiscal year. It may be worthwhile to pay the extra $1,225 premium processing fee to have your H-1B visa applications adjudicated in fifteen days. Although an employer is not guaranteed to receive approval in 15 days, at least he or she will know where the application stands if it is denied or USCIS issues a request for further evidence that requires the employer to submit additional documents.

IF THE H-1B VISA IS NOT AN OPTION, WHAT OTHER VISAS ARE AVAILABLE FOR NONIMMIGRANT WORKERS?

THE L-1 INTRACOMPANY TRANSFEREE VISA

The L-1 or intracompany transfer visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent, subsidiary, or affiliated entity. This visa allows a U.S. company to bring in top-level managerial, executive or specialized knowledge employees for a temporary period. The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for the U.S. company in a similar position.

The foreign entity may pay the employee his or her salary but the U.S. company must control the employee’s performance of his or her work. Authority to engage and terminate the employee is strong evidence of control. There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization. The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in the United States. There is a five-year limit on L-1B employees with specialized knowledge staying in the United States and a seven-year limit for L-1A managers and executives.

Consular posts generally see an increase in L-1 applications after the H-1B cap is reached. However, there is no legal reason aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas.

THE TREATY-TRADER/TREATY-INVESTOR VISA (E-1/E-2)

E or treaty visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital.

The E-2 category includes individual investors and managers, executives and essential skills employees of business entities that do the investment. As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the United States and the applicant’s home country. For treaty traders, the company set up in the United States must be at least 50 percent owned by a treaty country national but the applicant does not have to be an owner of the business. There must be a “substantial” flow of trade (either goods or services) between the U.S. business and the treaty national’s home country. USCIS determines whether the trade is substantial on a case-by-case basis. Factors that may be considered include the nature of the business, the number of transactions, the amount of trade and the capital outlay.

With respect to an investment visa, again the business must be at least 50 percent owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis. The investor must have experience in the business and must be actively involved. The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the United States for a two-year period with unlimited two-year renewals. Spouses of E visa holders may apply for work authorization.

TN STATUS

Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA). This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA. The applicant must have the degree or credentials required for that profession.

The TN visa is valid for three years and may be renewed indefinitely. A spouse of an employee in TN status is not eligible for work authorization.

THE O VISA

Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa. Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition. Beneficiaries in the arts must show prominence and a record of extraordinary achievement. Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.

The O visa is usually granted for three years and is renewed in one-year increments. The O visa may be renewed indefinitely. A spouse of an O visa holder cannot apply for work authorization.

THE J-1 EXCHANGE VISITOR VISA

This visa is available to foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs.

First, the prospective employer must establish an approved exchange program. Such programs may be sponsored by government agencies, private businesses or educational agencies. The foreign national may then enter the United States for the purpose of doing research, gaining training or studying.

Depending on the foreign national’s qualifications and the type of exchange program, the J-1 visa is available anywhere from 18 months for most trainees to 42 months for professors and research scholars. Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

Disclaimer  

This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.  

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