No H-1Bs, Now What?

Many of us are all too familiar with the fact that the H-1Bs visa cap for the year 2004 has been exhausted. The Federal Government’s 2005 fiscal year will begin on October 1, 2004. This date sets the start of new H-1B numbers becoming available. The USCIS will accept applications for these numbers starting April 1, 2004. In all likelihood, the 64,000 H-1B visas available for 2005 may all be used up by October 1, 2004 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 2004.

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, 2004. There are others whose B-2 status will expire after April 1, 2004 but long before October1, 2004. 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.

Because there is a significant concern that H-1B visas may run out again by October 2004, it is advisable that employers invest in their future and file H-1B petitions starting as soon as possible, i.e. April 1, 2004. While an approved petition will not give authorization for immediate employment, it will secure authorization beginning October 1, 2004, and span for up to three years. Waiting to file can result in the employer and employee facing a used cap. In the interim, new H-1B employees in the U.S should consider other options for remaining in the U.S.

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, 2004, 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.

It is best to consult with an immigration practitioner to discuss other available options. The legal immigration community is actively working with the Department of Homeland Security to arrive at workable solutions. Ideally, we would like to see a mechanism where new H-1B employees could remain in the U.S. in a period of stay authorized by the U.S. government until October 1, 2004. We recognize that work authorization cannot be granted until October 1, 2004. But, the ability to remain in the U.S. lawfully, can exceed the expensive costs of leaving the U.S. to return only six months later

By: Atty. Robert L. Reeves and Atty. Joseph I. Elias