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The visa category most frequently used by employers to hire foreign national professionals or students graduating with college degrees is the H-1B visa. Technically, the H-1B visa is an employer-sponsored visa for foreign nationals employed in a “specialty occupation,” which is loosely defined as a position for which the normal minimum requirement is a bachelor’s degree or higher in a specific field. The employer must pay the higher of the “actual wage” that it pays to its employees or the “prevailing wage” paid by other employers in the geographical area for workers employed in the same or similar occupation at the same level. An annual quota of 65,000 new H-1B non-immigrants per year was established in 1990. This was sufficient to meet demand until 1996. However, in the second half of the 1990s, the need for H-1B workers in occupations such as information technology, teaching, medicine, engineering, financial analysis and marketing far exceeded the 65,000 quota. The result was that employers could not hire foreign national workers in these and other professions during the last several months of the government fiscal year. Responding to this serious problem, Congress raised the H-1B quota twice, finally setting it at 195,000 per year for the fiscal years ending Sept. 30, 2002, and 2003. Congress also exempted from the count H-1B workers employed by universities and related institutions. Unfortunately, the law that increased the H-1B quota threefold had a sunset provision that became effective Oct. 1, 2003, and it has not been reinstated. Therefore, for this fiscal year and future fiscal years, only one-third of the previous number of visas will be available to employers wishing to hire foreign national professionals. The quota has not yet been raised, and the legislative prognosis for extension, at least in the short term, is not good. Last month, U.S. Citizenship and Immigration Services (formerly the U.S. Immigration and Naturalization Service) announced that approximately 45,000 petitions subject to the cap were either approved or already at USCIS processing centers. Given the recent historical level of demand and the backlog of H-1B petitions left to be adjudicated, reasonable projections estimate that H-1B numbers will run out this month or next, leaving six or more months in which employers will not be able to employ needed foreign national workers in key professions until the beginning of the new fiscal year. It is not the purpose of this article to debate the national policy implications of this state of affairs. (Suffice to say that the author believes that this result is highly counterproductive to our national interests and certainly to the interests of the U.S. business community.) It is the purpose of this article to alert the employer community of this imminent and serious issue and suggest some immediate planning strategies to deal with the problem. The following are some of those strategies: The first issue is to determine whether the employer or the foreign national is cap-exempt. In addition to universities being cap-exempt, any foreign national who has already been the recipient of H-1B status for the same employer or for a different employer and has not left the United States for one year is not subject to the cap. Employers that are considering hiring or recruiting foreign nationals from U.S. or foreign universities or otherwise should expedite their recruitment and planning process to get H-1B petitions filed immediately. Numbers are counted on the basis of the date of H-1B approval and not the date of H-1B petition filing. This is significant because USCIS allows for the payment of a $1,000 “premium processing” fee to ensure processing of the petition within 15 days or less. Normal processing without the premium-processing fee is likely to take a minimum of three months. The result is that petitions filed after the date of this article with regular processing are highly unlikely to be adjudicated before the quota is reached for this fiscal year. Once the H-1B cap is reached, other, alternative visa options should be explored. For Canadian or Mexican nationals, the TN-1 allows for one-year admission of professionals in occupations specified in the North American Free Trade Agreement. Students with F-1 or J-1 visas may be able to obtain a period of practical training following the conclusion of their studies. The J-1 exchange visitor visa also may be utilized for a variety of researcher or trainee positions. The O-1 extraordinary-ability visa may be an option for aliens who can prove that they have achieved a level of outstanding accomplishments or are renowned in their fields. The H-3 visa may be available if the position offered falls within the parameters of a corporate training program. Other options may also present themselves in particular situations. In some scenarios, no viable option may exist other than having the H-1B petition approved effective Oct. 1, the beginning of the next fiscal year. Assuming the foreign national is in the United States, both the employer and the foreign national would be well-advised to consult with a qualified immigration attorney to discuss issues such as options for keeping the foreign national in legal status. In addition, immigration counsel may be able to suggest options to enable the employee to perform services for the company in the interim, perhaps while physically outside the United States, and options for compensating the foreign national during periods in which the foreign national is not able to obtain employment permission in the United States. Although there is a plethora of pressing issues in immigration law as we start the new year, issues arising out of the H-1B quota are very much at the top of the list for new-year planning. H. Ronald Klasko is a partner in the Philadelphia office of Klasko Rulon Stock & Seltzer, where he focuses on immigration law. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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