Michael D. Patrick
Michael D. Patrick ()

Employers and their immigration counsel have made it through the rush of the FY 2015 H-1B cap filing season. As anticipated, the season was again highly competitive. U.S. Citizenship and Immigration Services (USCIS) received a record 172,500 petitions this year for H-1B employment in FY 2015, against the annual H-1B cap of 85,000—more than double the petitions needed to meet the quota.1 This means that more than half the H-1B petitions were rejected in USCIS’s cap selection lottery, leaving many employers unable to meet hiring needs or retain talented foreign professionals.

Employers fortunate enough to have a case accepted for filing face tougher government scrutiny and greater likelihood of denial. This article will address what petitioning employers can expect as their H-1B cases are adjudicated and will also provide a snapshot of possible options for U.S. employers whose H-1B petitions were not selected in this year’s cap.

H-1B Adjudication Trends

As USCIS works through the H-1B cases chosen for adjudication, employers with pending petitions should expect longer waits and tougher scrutiny of their cases. USCIS has set Aug. 1, 2014, as the date by which it hopes to touch all petitions that were selected in this year’s lottery. By that date, employers should see a decision on their case or a USCIS request for evidence (RFE). Upgrading an application to premium processing might be of interest to those employers who wish to receive notice of the status of their application at a more accelerated pace.

Under premium processing, USCIS provides notice of status within 15 calendar days of physical receipt of the petition. In the last several years, across the immigration bar, practitioners have found that denial rates and requests for evidence have increased drastically, even though there has been no change in the law or regulations.2

An RFE is used by adjudicators to obtain more information regarding whether the petitioners have met the requisite legal standard. In recent years, RFEs have become more demanding and burdensome; many argue that USCIS adjudicators have more narrowly interpreted the legal standards, implicitly imposing higher standards of review that exceed the preponderance of evidence standard to which immigration filings are subject. Requests for evidence also result in higher costs and longer waiting periods for employers before they receive final notice of adjudication.3

Alternatives to the H-1B

For those employers whose petitions were not selected in this year’s H-1B cap, now is the time to begin thinking about alternatives for talented foreign candidates and examining other employment-based nonimmigrant visa categories for which a prospective foreign employee might be eligible. Although in most cases, prospects are dim, with in-depth analysis, sound strategy, and perhaps some flexibility, it may still be possible to find an avenue through which to meet hiring goals and business needs.

Exempt From the Cap

Some foreign professionals might be exempt from the H-1B cap. If a prospective employee is cap-exempt, the employer can file an H-1B petition at any time and avoid the restrictions of the H-1B yearly quota.

Which cases are cap-exempt? The annual cap for H-1B petitions only applies to petitions for new H-1B employment. Employers may make lateral hires of foreign professionals who currently hold valid H-1B status through other employers or have held H-1B status in the past. Current H-1B employees can extend their status for a total stay of up to six years (or more in certain cases) without the need to reapply for a cap number. Foreign professionals who have previously held H-1B status and have spent less than six years (the statutory maximum) in that status may return for the remainder of their H-1B time without being counted against the annual cap.

Another set of cap exemptions is reserved for H-1B petitions filed by U.S. higher education institutions and their affiliated non-profit research institutions or at non-profit or government research organizations. In addition, an H-1B employee of a for-profit company may be cap-exempt if the employee’s work also directly benefits a cap-exempt institution, such as a research partnership between a for-profit company and university where the employee will be hired by the for-profit but will work onsite at the university for the mutual benefit of both organizations. Similarly, an employee with H-1B cap-exempt status may obtain approval of a cap-subject petition if that petition is filed for concurrent employment. This means that the foreign professional would enter into, or continue, an employment relationship with a cap-exempt institution while at the same time filing for concurrent employment with a cap-subject employer.

Multinational Transfers: L-1

The L-1 visa is available to intracompany transferees—employees who have worked outside of the United States for a parent, branch, subsidiary, or affiliate of a U.S. organization and who are transferring to qualifying related U.S. entities. In order to qualify for an L-1 visa, the employee must have worked for at least one consecutive year during the previous three years in an executive, managerial or specialized knowledge position with the foreign affiliate. This visa category, which is initially granted with a three-year period of stay, presents an alternative to the H-1B for two types of foreign professionals.

The L-1A category allows for the transfer of managerial or executive employees (who are permitted a maximum period of stay in the United States of seven years). The L-1B category is reserved for individuals with specialized knowledge (and are permitted a maximum period of stay in the United States of five years). Like the H-1B category, an L-1 visa allows a foreign professional to pursue permanent residence while on their temporary visa—a privilege that is not available to any other nonimmigrant visa categories. There are no quota limitations on the L-1 category, and unlike the H-1B category, the spouses of valid L-1 visa holders may be granted work authorization while in the United States. Employers should be advised that USCIS examines L-1 petitions, and especially L-1B petitions, with a high degree of scrutiny, particularly during periods of H-1B cap unavailability.4

Extraordinary Ability: O-1

A foreign professional who is especially accomplished in the sciences, arts, education, business, athletics, or the motion picture or television industry, as evidenced through special awards or recognition, may be eligible for the O-1 category for individuals of extraordinary ability. Extraordinary ability means that the individual has risen to the very top of his/her field. This can be demonstrated through well-documented national or international acclaim of the individual’s endeavors. An individual may demonstrate notable accomplishments through such things as: an original and significant scholarly or business-related contribution to a field; membership in an association that requires outstanding achievements; or receipt of a nationally recognized prize or award. There are no quota restrictions for the O-1 category. The foreign professional is initially admitted for a period of three years, and O-1 status may be extended in one-year increments, with no statutory limits on the number of extensions.

Students: F-1

For those foreign professionals who are current F-1 students at a U.S. institution or are recent graduates, another possibility is to seek employment pursuant to Optional Practical Training (OPT). F-1 students are eligible for up to one year of post-completion OPT in a job directly related to their major area of study. The one-year OPT work authorization may be extended, for a period of 17 months, for students in STEM (Science, Technology, Engineering, Math) fields (F-1 students must continue to be employed within the designated STEM field of their studies). However, in order to benefit from this STEM extension, an F-1 STEM OPT employer must be registered with the federal government’s online employment eligibility verification system using E-Verify. Those employers who do not currently use E-Verify should consult with counsel about the benefits and drawbacks of registration.

Treaty Investors and Traders

A treaty of commerce and navigation may provide the basis for E-1 or E-2 classification, provided that the requisite treaty is in place between the United States and the country of nationality of either the foreign professional or the business. An individual’s nationality is determined by his/her citizenship. The nationality of a business is determined by the citizenship of the individual owners of that business.

E-1 classification is for foreign professionals who are coming to the United States to engage in trade of a substantial nature (trade must be between the U.S. and the foreign professional’s country). E-2 classification is for foreign professionals who are coming to the U.S. to direct and develop an enterprise in which the professional has invested, or is actively involved in the process of investing, a substantial amount of capital. The employee must be working in a supervisory or executive capacity, or must possess highly specialized skills. These visas are granted for an initial period of two years and may be extended indefinitely, so long as the foreign professional intends to leave the United States at the completion of their authorized stay.

Free Trade Agreements

Foreign professionals from Australia, Canada, Chile, Mexico, or Singapore may be eligible for special Free Trade Agreements visas that are similar to H-1B.

The TN (Trade NAFTA) category is reserved for degree professionals from either Canada or Mexico. This category is not subject to the cap. In order to qualify, the foreign professional must be coming to work in the United States in an occupation that is listed under the North American Free Trade Agreement (NAFTA). Examples of such occupations are: accountants, engineers, lawyers, pharmacists, scientists, and teachers. The foreign professional must be able to demonstrate their qualifications to practice in the occupation in question (this can be shown through the possession of a relevant degree or credential). This visa category allows a foreign professional to come into the United States for an initial three-year period of stay and is renewable in three-year increments. Spouses of valid TN visas may not work while in the United States, but they are permitted to study.

E-3 is for Australian professionals and has a quota set at 10,500 visas per year (the quota has never been met). The job offered to the foreign professional must be in a specialty occupation, similar to that required for H-1B workers.5 This category has an initial two year period of stay, and is renewable indefinitely. Spouses of E-3 visa holders may apply for work authorization.

The H-1B1 visa is specific for Chilean and Singaporean professionals. Up to 6,800 visas are allotted for these individuals per year, carved out from the standard H-1B cap. The job offer must be in a specialty occupation. This visa is granted for an initial one-year period of stay and is renewable in one-year increments. The spouses of H-1B1 visa holders are not permitted to work while in the United States incident to their dependent status, nor may H-1B1 visa holders pursue permanent residence.6

Conclusion

With the prospects for immigration reform increasingly remote, employers will need to readjust their hiring strategies in light of an improving economy, greater competition in the H-1B lottery, and stricter scrutiny on immigration petitions. As the economy improves and the number of filed H-1B petitions continues to grow, employers will need to examine alternatives in order to maximize their ability to hire talented foreign candidates.

Michael D. Patrick is a partner at Fragomen, Del Rey, Bernsen & Loewy. Alex Cárdenas, a law clerk, and Nancy Morowitz, counsel at the firm, assisted in the preparation of this column.

Endnotes:

1. U.S. Citizenship and Immigration Services, USCIS Reaches FY 2015 H-1B Cap, April 10, 2014, available at http://www.uscis.gov/news/uscis-reaches-fy-2015-h-1b-cap-0.

2. “Denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011.” National Foundation for American Policy, Analysis: Data Reveal High Denial Rates for L-1 and H-1B Petitions at U.S. Citizenship and Immigration Services, February 2012, available at http://www.nfap.com/pdf/NFAP_Policy_Brief.USCIS_and_Denial_Rates_of_L1_and_H 1B_Petitions.February2012.pdf.

3. Id. (finding that “the Request for Evidence rate increased from 1 percent in FY 2004, to 13 percent in FY 2007, and then more than doubled to 28 percent in FY 2009, 30 percent in FY 2010, and 27 percent in FY 2011″).

4. National Foundation for American Policy, L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase, March 2014, available at http://nfap.com/pdf/NFAP Policy Brief L-1 Denial Rates Continue March 2014.pdf.

5. Per federal regulation, “specialty occupation” is defined as an occupation that requires the application of highly specialized knowledge and at least a bachelor’s degree or its equivalent in that particular specialty. 8 C.F.R. §214.2(h)(4)(ii).

6. The Department of Homeland Security recently issued a proposal to extend work authorization to certain H-1B spouses. The proposed rule is still pending, with completion of the comment period scheduled to end on July 11, 2014.