No H-1Bs, Now What?

No H-1Bs, Now What?
By: Attys. Robert L. Reeves and Joseph I. Elias

On October 1, 2004, the USCIS announced that all the H-1B visas for fiscal year 2005 have all been allocated. The Federal Government’s 2006 fiscal year will begin on October 1, 2005. This date sets the start of new H-1B numbers becoming available. The USCIS will accept applications for these numbers starting April 1, 2005. In all likelihood, the 64,000 H-1B visas available for 2005 may also all be used up by October 1, 2005 because of the huge demand.

The obvious solution is for Congress to eliminate or increase the cap. But, the obvious solution may not be a politically feasible one. The H-1B visa and its cousin the L-1 are receiving increasingly bad publicity in the United States. These visa categories are associated by voting constituents as the visa type that steals jobs from Americans and ultimately leads to jobs being outsourced to overseas countries despite numerous evidence to the contrary. There is a growing fear in America of foreign outsourced jobs and immigration restrictionists are playing on this fear by associating it with the H-1B visa. So, it is unlikely that Congress will raise or eliminate the cap before November 2005.

The cap only applies to new H-1B employment. Those people in H-1B status who need to extend their status or wish to change H-1B employers will generally not be affected by the cap. The cap also does not apply if the employer is a nonprofit institute, a higher education institute, or qualifying affiliates.

The question then becomes, what can a potential new H-1B employee do? There are many people in the United States who have H-1B employers ready to petition for them. Those who are in the U.S. as B-2 tourists are facing expiration of their status before April 1, 2005. There are others whose B-2 status will expire after April 1, 2005 let alone October 1, 2005. These people will not be able to apply for an H-1B change of status since they will have no status to carry them forward to October 1, 2004.

There are several alternatives for remaining in the U.S. Some people will be able to avail of the E-2 visa category by setting up a business in the U.S. Others still may be able to avail themselves of the L-1 visa category as a transferee of an international company. Some employers may have a seasonal, intermittent, or peak load need for the worker allowing conversion to H-2B status. Students whose Optional Practical Training (OPT) will expire before October 1, 2005, or who will graduate before that date and have not filed for OPT, may enroll in another full-time field of study. Some professionals of extraordinary ability, distinction, and caliber in their field may qualify for the O visa. For some people, the only option may be to return home and process the H-1B visa at a U.S Consulate in October. The path to choose depends on each individual’s circumstances.

Because there is a significant concern that H-1B visas may run out again by October 2005, it is advisable that employers invest in their future and file H-1B petitions starting as soon as possible, i.e. April 1, 2005. In the interim, new H-1B employees in the U.S should consider other options for remaining in the U.S.

At Reeves & Associates we are working with our clients to find other available options. We are also actively working with Congress and the Department of Homeland Security to arrive at workable solutions. Employers are also being educated on the power their voices carry in Congress. Until Congress hears enough requests to raise the cap from its constituents, the H-1B numbers will not be raised. Until then, foreign workers will have to seek alterna