Record Demand for H-1B Visas Requires Strategic Planning

Each year, tens of thousands of employers file applications for H-1B visas so that they may hire foreign professional workers. Perhaps the most well-known U.S. visa category, the H-1B visa is requested by U.S. employers who wish to place a foreign worker in a specialty occupation position in the United States. To qualify, the position must require at least a bachelor’s degree and the worker must possess a relevant degree or equivalent experience. The worker must also be paid at least the prevailing wage for the position. Finally, an H-1B visa number must be available at the time of filing, unless the position is exempt from the annual numerical limit, or cap.

Approximately 124,000 H-1B petitions were filed last year (FY2014). Under current law, there is an annual cap of 65,000, with an additional exemption for the first 20,000 beneficiaries who possess a U.S. master’s degree. Last year, the cap was reached within the first five business days that filings were accepted, triggering a government lottery. Overall, that meant that approximately one out of three applications was rejected because the cap had been reached. Of course, candidates eligible for the master’s cap had a higher probability of success, given that their cases were run through the master’s cap lottery and then, if not accepted, were run through the “regular” lottery.

Filings for FY2015 will be accepted beginning April 1, 2014, six months before the start of the fiscal year. While it is impossible to predict the number of filings that will be submitted this year, many expect the growing economy and increased corporate globalization to result in even higher demand for H-1B visas. Accordingly, H-1B petitions filed this year likely will have a lower probability of acceptance — perhaps a much lower probability of acceptance — than last year.

What to do if a case is rejected in the lottery

Companies should not wait until April to formulate a backup plan for their H-1B cap cases. Now is the time for employers to assess employees and candidates for whom they are filing H-1B petitions, identify those who are key to the organization, and consider potential alternative immigration strategies, such as the following:

F-1 student status
F-1 student visa-holders are typically eligible for one year of post-completion optional practical training (OPT). They may apply for an employment authorization document (EAD) prior to completion of their program. F-1 students who possess degrees in STEM (science, technology, engineering or mathematics) fields and are employed by companies participating in E-Verify are eligible to extend their OPT for an additional 17 months. Companies not already participating in E-Verify may wish to immediately consider the advantages and disadvantages of enrolling, if they plan to sponsor H-1B workers this year. Additionally, foreign nationals not currently in F-1 student status may wish to consider enrolling in a full-time course of study at a U.S. university if H-1B petitions filed for them are not accepted in the lottery.

J-1 exchange visitor status
J-1 exchange visitor status is designed to foster cultural education and exchange. The most common J-1 categories are the trainee and intern categories, which are typically available to candidates who are students or graduates of foreign universities. The J-1 trainee visa category may work for an offer involving training in a professional field for up to 18 months. The intern category is appropriate for an internship offer of up to 12 months. Significantly, use of the J-1 visa category may trigger a two-year home country physical presence requirement at the conclusion of the authorized period of stay in some cases. Additionally, the J-1 category is a temporary intent category, meaning the visa holder must demonstrate ties to his or her home country, and intent to return. Thus, the J-1 is not a long-term option but may be a good fit for a short-term need.

L-1 intracompany transferee status
Employees of multinational enterprises are eligible for L-1 status if they have been employed in a managerial or specialized knowledge role by a foreign parent, branch, subsidiary or affiliate of a sponsoring U.S. employer for at least one year prior to seeking admission to the United States. Specialized knowledge (L-1B) workers may stay in the United States for a total of five years, and managerial (L-1A) workers are eligible to stay for up to seven. Employers may wish to consider sending a valued employee or candidate not selected in the cap to work for the company abroad for at least one year. Thereafter, the employee may be eligible to return to the United States in L-1 classification.

O-1 extraordinary ability status
An individual who is highly accomplished and can demonstrate a sustained level of achievement in the sciences, arts, education, business or athletics may be eligible for O-1 nonimmigrant classification. This category may be appropriate for a candidate who can document achievements through evidence such as: publications, articles in major press or trade journals, citations, major awards, membership in associations that require outstanding qualifications, receipt of a high salary, peer-review activities, and employment in a critical capacity for an organization with a distinguished reputation. For a candidate who may be eligible for an O-1 visa, there is a similar path to a green card that may be an option as well.

Country-specific nonimmigrant visa options
Citizens of certain countries are eligible for special visa classifications. Australian citizens are eligible for E-3 classification, which is similar to the H-1B in that it requires a showing that the position is a specialty occupation and that the beneficiary possesses a relevant degree or equivalent experience. E-3 status is available in two-year increments, renewable indefinitely. Citizens of Singapore and Chile are eligible for the H-1B1 category, which is also similar to the H-1B in that it is primarily available for specialty occupation positions to beneficiaries who possess appropriate educational credentials. H-1B1 status is granted in one-year increments. Additionally, citizens of Canada or Mexico who are offered a position that fits within the professional categories listed in the NAFTA treaty may be eligible for TN classification. TN classification is typically available in three-year increments and is renewable indefinitely. All of the above country-specific alternatives are temporary intent categories, requiring holders of these statuses to maintain ties to their home countries.

Green card options
It may be possible for a candidate to bypass the need for nonimmigrant status by immediately pursuing a green card. For example, candidates with spouses who are U.S. citizens have a speedy path to permanent residence. Even without a spouse who is a U.S. citizen, a candidate may be eligible for the Diversity Visa Lottery. This program is available to individuals born in countries with historically low levels of immigration who possess at least a high school diploma or two years of work experience in an occupation requiring at least two years of training or work experience.

Alternatively, there are several employment-based green card categories that should be considered. First-preference immigrant visas such as the extraordinary ability alien (EA) and outstanding researcher (OR) may be options for stellar candidates with impressive resumes. The extraordinary ability green card category has requirements very similar to those of the O-1 visa. The OR category has requirements that are similar to the extraordinary ability category, and is available if a position involves academic or applied research. Another option to consider is the National Interest Waiver green card category. This NIW category, which can be either employer- or self-sponsored, requires proof that the individual will be performing work in the U.S. national interest. It must be shown that the individual is performing work of substantial intrinsic merit, that the benefit is national in scope, and that the national interest would be adversely affected if the individual were required to go through the labor certification process, which is the employer’s test of the labor market to determine whether there are minimally qualified U.S. workers.

Looking outside the U.S.
Companies invest a significant amount of time and cost when recruiting and hiring a foreign professional, so it is no surprise that many do not want to walk away from a candidate if he or she does not win an H-1B lottery slot. Today, companies often look outside of the U.S. when exploring alternatives to the H-1B visa. At Berry Appleman & Leiden LLP, clients increasingly want us to map out global options both for individual candidates and as part of a global mobility strategy. Many countries, including Canada, Australia and the U.K. have implemented major reforms to their high-skilled immigration programs in just the past few years. With offices in six countries and 400 employees worldwide, we routinely advise companies on the rapidly changing landscape and assist them in developing both short-term and long-term options. Absent the U.S. Congress passing immigration reform that expands access to high-skilled foreign workers, many more companies will find it necessary to look beyond the U.S. border to meet their staffing needs.

Susan Wehrer
is a Partner in the San Francisco office of Berry Appleman & Leiden LLP. Ms. Wehrer concentrates on business immigration matters including labor certification issues, immigrant visa petitions, and adjustment of status applications. Ms. Wehrer has worked extensively with clients on petitions for individuals of Extraordinary Ability, Outstanding Researchers and Multinational Managers and has advised clients on I-9 compliance issues, the immigration implications of mergers and acquisitions, and immigration issues facing start-up companies. Ms. Wehrer has practiced labor and employment law, held an editorial position with The Labor Letters, Inc., and served as Adjunct Professor of Labor Relations at Woodbury University.

Lynden Melmed is a Partner in the Washington, D.C. office of Berry Appleman & Leiden LLP. He provides strategic advice regarding legislative, policy and adjudication issues that affect U.S. and global clients. Prior to joining BAL, Lynden served as Chief Counsel of U.S. Citizenship and Immigration Services (USCIS) within the Department of Homeland Security (DHS), that agency’s highest ranking legal position. He also served as Counsel to the Chairman of the Senate’s Immigration Subcommittee, where he was responsible for advising the Chairman and the subcommittee on all legislative and oversight issues related to U.S. immigration.