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Immigration law is a spiderlike creature of politics. Its sticky web of laws, regulations, and ponderous bureaucratic traps capture many victims. Employers who require the services of foreign nationals, however, have been sharply reminded this year that the holes in the immigration spider’s web are as important to understand as its traps. First one, then another of the most common work visas, H-1B and H-2B status, were oversubscribed early in the calendar year for the 2004 fiscal year. Who uses these visas? All types of businesses employ H-1B and H-2B workers, from computer and biotechnology companies, to law firms, hospitals, and landscaping businesses. More visas will become available at the start of the new fiscal year on Oct. 1, 2004. But employers have heard that this coming fiscal year’s H category quotas are already being rapidly depleted, to the extent that next year’s quotas may evaporate at the start of the new fiscal year. What should be done by employers who require the services of foreign workers? And, like Oliver Twist, are employers solely reduced to approaching Congress to beg for “more”? H VISAS GOING, GOING, . . . Immigration lawyers, foreign national employees, and human resources departments of companies with foreign nationals in the workplace learn to speak in the spider’s jargon, but for those not immigration web-savvy, these are the basics. H-1B “specialty worker” visas are employer-specific temporary work permits for certain professionals. A U.S. employer must file an H-1B petition with the U.S. Citizenship and Immigration Services for a prospective foreign employee. The job must be a “specialty occupation,” i.e., requiring at least a bachelor’s degree in a particular field. The employee must hold the required degree or its equivalent. The H-1B employer must adhere to numerous legal requirements designed to ensure that the terms of employment do not undercut wages and working conditions of U.S. workers. There are 65,000 H-1B visas available during each fiscal year beginning every Oct. 1. The H-1B cap for fiscal year 2004 was reached on Feb. 17, 2004. H-1B petitions for the 2005 fiscal year were being accepted as of April 1, 2004. How many H-1B visas have been used for fiscal year 2005 is unknown, but by early June, more than 15,000 reportedly had been approved. This pace would indicate approval of more than 30,000 H-1Bs for a fiscal year that has not even begun. Moreover, it is likely the pace of petition filing has increased, as awareness increases about the fast-disappearing supply. H-2B visas are temporary work visas for employees not meeting the definition of a “specialty occupation.” These visas are different in other important aspects too. An H-2B visa requires that the position must be temporary, i.e., seasonal, for peak-load or intermittent need, or for a one-time occurrence. The employer must obtain a certification from the Department of Labor that there is a shortage of available, qualified U.S. workers at the prevailing wage in the area of intended employment. Finally, the period of H-2B validity typically is much shorter, a maximum of one year in most circumstances. Certain industries have been heavy users of H-2B visas, including the forestry industry, seasonal tourist industries, and landscaping companies. There are 66,000 H-2B visas available each fiscal year. These were exhausted in March 2004. SURPRISING SHORTAGE Why did these visas run out this fiscal year? Congress has not authorized sufficient numbers of visas to meet demand. During the dot-com boom of the 1990s, companies clamored for additional H-1Bs. In 2000, as a political compromise, Congress “fixed” the problem by providing 195,000 H-1B visas for three years, but with strings attached, including payment by the employer of a $1,000 fee for training programs for U.S. workers. Back then, these additional H-1B visas were never exhausted, but their availability ended with the 2003 sunset of the law. Despite the need, however, no extension of this temporary “fix” has been passed, or even seriously considered, in this election year. Curiously, this is the first time the H-2B cap has been reached. Explanations include the continued difficulty in certain industries, such as summer tourism concerns, in attracting U.S. workers. Nonetheless, the exhaustion of H-2B visas this year came as a surprise to many, prompting a bipartisan but so-far unsuccessful legislative campaign. H-1B and H-2B employers are fast filing petitions for the upcoming fiscal year, to the point that many observers believe that H-2Bs may well be exhausted for fiscal year 2005 before Oct. 1 this year, and H-1Bs soon after. OTHER VISAS OUT THERE Some employers have options to circumvent this problem because some H-1B employees and employers are exempt from the annual limit. Cap-exempt employees include individuals who are already working in H-1B status with another employer, and those in another nonimmigrant status who previously have been admitted to H-1B status and have not been out of the United States for a full year. Cap-exempt employers include colleges and universities, their affiliated nonprofit entities, nonprofit research organizations, and government research organizations. Barring the good fortune to find exempt employees or employees with work papers already in hand, nonexempt employers must search the immigration spider’s web for other visas or work permission. Strategies will depend entirely on the needs and circumstances of the employer and prospective employee. Some strategies — in alphabetical, not strategic, order — include: • B-1 visitor visas for business. Permissible B-1 activities include traveling to attend conventions and conferences, for consultations, and for other commercial or professional activities that do not constitute employment. Normally, with exceptions for honoraria and reimbursement for expenses, remuneration in the United States is prohibited. • E visas. These give effect to treaties between the United States and individual foreign countries that provide for reciprocal benefits for traders and investors. E visas are generally available to foreign nationals working for companies that conduct at least 50 percent of their international trade between the United States and the treaty country, and to foreign nationals managing a substantial foreign investment in the United States. The E visa holders themselves must be nationals of the relevant treaty country. • L-1A and L-1B visas. These are intra-company transfer visas for multinational corporations with U.S. and overseas entities that meet either the definition of parent/subsidiary, affiliate, or branch. Prospective employees may qualify as an L-1A “multinational manager or executive,” which requires at least six months in the last three years of overseas executive or managerial experience with the overseas entity. They also may qualify as an L-1B “specialized knowledge” employee. • J-1 exchange visitor visas. This visa definitely is not a wholesale, or even off-the-rack retail, substitute for the H category. For most employers without their own J-1 programs, it requires work with, and payment to, an agency authorized to issue exchange visitor authorization forms. Outside academic or research settings, these visas principally are used for practical training, summer work, camp counselor, or au pair situations. • O-1 visas. These are employer-specific visas for “aliens of extraordinary ability” in the sciences, arts, business, or athletics. O-1 visas generally are available to individuals at the top of their fields of endeavor. Fulfillment of a sufficient portion of the applicable regulatory criteria plus a strong showing of the status of the individual in the top of his or her specific area of expertise is required. O-1 status has been granted to a highly diverse set of individuals, from martial arts experts, photographers, and marketing geniuses to cutting-edge AIDS researchers, economists, and bariatric surgeons. • Trade NAFTA “TN” visas. Under the North American Free Trade Agreement, a nonimmigrant visa category was created for Canadian and Mexican professionals whose occupations are listed in the annex to these treaties. The TN visas may be obtained in one-year increments with no specific maximum duration, but visa holders must maintain nonimmigrant intent. • P and Q visas. Sometimes, there may be an uncommon answer to the lack of H visas. The immigration alphabet soup has several other more-specialized visa categories than those more-common work-related visas listed above. For example, P visas are for certain athletes and entertainers. Q visas are cultural exchange visas for practical training and cultural sharing. The alphabet of visas currently goes through “V.” • Permanent resident petitions and concurrent applications to adjust status. The backlog in the labor certification process for permanent resident status makes obtaining that status no quick substitute for an H visa. Nonetheless, this may be appropriate for some employees who potentially are exempt from labor certification. These include multinational managers and executives with at least one year of overseas qualifying experience in the last three years; aliens of “extraordinary ability” in the sciences, arts, or business; outstanding researchers or professors; or individuals holding advanced degrees, or of exceptional ability, whose work is deemed to be in the “national interest.” Despite all these options, the ultimate solution to visa shortages may be legislative. Just as those opposed to an increase in work visas for foreign nationals have many opportunities to have their say, it is entirely legitimate for employers who hire foreign nationals to advance their needs in the political arena. The exhaustion of H visas annually indicates a significant constituency for legislative action. Consider the fish roe industry: Its advocacy tacked unlimited H-2Bs for fish roe workers onto this month’s Defense Appropriations Act. Lawyers can help. Learn what your clients’ needs and concerns are, and assist your clients in expressing these in the public arena. After all — Oliver Twist had every right to ask for “more.” Alison J. Brown practices immigration law with the D.C. firm of Maggio Kattar. She can be reached at [email protected].

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