June 2014

Immigration Law Newsletter, June 2014

FY2015 H-1B Quota All Used up, What’s Next?

As the U.S. economy is on a path to a slow recovery, companies have been ramping up their hiring effort, especially in the technology industry. The entire FY2015’s allotment of H-1B visas were used up during the first week of April, 2014, leaving employers with an H-1B visa drought until October 1, 2014. Moreover, many highly qualified foreign professionals are unable to get an H-1B visa due to the random and arbitrary H-1B lottery. In this article, we will explore some of the alternatives to the H-1B visa.

1. EB-2 Green Card for Members of Profession Holding Advanced Degree or Exceptional Ability. EB-2 green cards may be a good alternative to an H-1B visa for U.S. employers who seek to bring qualified foreign workers from countries whose U.S. immigrant visa allotment is not backlogged, i.e. all countries except India and China. There is a common misconception that a foreign worker must be in H-1B status before the employment-based green card application process can begin. The law does not require a foreign worker to be in H-1B status as a prerequisite for a green card. As a matter of fact, an employer can apply for a green card for a foreign worker who has never stepped a foot in the U.S., provided that the foreign worker meets all the statutory criteria concerning the foreign worker’s education and prior experience, and the petitioning employer has the ability to pay the green card salary. Moreover, the entire EB-2 green card application process can be completed under one (1) year. In addition, there is much more certainty in obtaining the green card than having a less than 50% chance of getting picked in the H-1B lottery.

2. L-1 Intracompany Transferee. The L-1 visa category is one of most useful visas for multinational companies to bring foreign employees to the U.S. The L visa has many advantages, including a fast track to green cards (L-1A executive or manager only), and work permits for L-2 spouses. Employers must carefully analyze whether an employee can be classified as a manger or executive, or a specialized knowledge employee, as the distinctions have become increasingly important. First, different limits on period of stay apply: seven (7) years for managers and executives, and five (5) years for specialized knowledge personnel. Second, L-1A managers and executives have a fast track to green card – EB-1C Multinational Manager or Executive – that is not available to L-1B specialized knowledge personnel.

3. E-3 for Australian Nationals. The E-3 visa is a good alternative for Australian nationals. It is very similar to H-1B in that foreign workers must come to the U.S. to perform services in a specialty occupation. E-3 has an annual quota of 10,500 E-3 visas, but as a practical matter, the quota is rarely reached. Consequently, E-3 Beneficiaries can start at any date within the calendar year, and are not required to start on October 1st like new H-1B Beneficiaries. The E-3 visa has other advantages over the H-1B visa. First, the E-3 Beneficiary can apply for the E-3 visa at a U.S consulate without having to obtain prior approval from USCIS. Second, the E-3 visa can be extended indefinitely in two-year increments, so long as the Beneficiary meets all the criteria and has no intent to live in the U.S. permanently. Third, unlike H-4 dependents who are not permitted to work in the U.S., spouses of E-3 Beneficiaries can apply for and receive employment authorization document (EAD).

4. TN for Canadian or Mexican Nationals. The TN visa permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in a profession included in Appendix 1603.D.1 of the North America Free Trade Agreement (NAFTA). The biggest advantage of a TN visa over an H-1B visa is that there is no annual cap, so Canadian and Mexican citizens do not have to compete for a TN visa number. Other advantages include indefinite extension of stay in three-year increments so long as the Beneficiary meets all TN criteria. The TN visa can be extended indefinitely at three-year increments. However, dual intent is not recognized in the TN visa, meaning that applying for a green card can result in a denial of a TN extension request or entry into the U.S on TN visa. However, USCIS has stated that a pending or approved employment- or family- based immigrant petition filed on behalf of a TN Beneficiary is not sufficient to impute immigrant intent. As a practical matter, filing the immigrant petition is not advised until the TN Beneficiary changes status to H-1B or at least has the TN status extended and does not plan to travel.

5. H-1B1 for Chilean and Singaporean Nationals. Another good option in lieu of H-1B is the H-1B1 visa. This visa category is only available to Chilean and Singaporean professionals in specialty occupations. The annual cap for the H-1B1 visa count against the regular H-1B cap. The H-1B1 visa category closely tracks the H-1B visa qualifications. Initial admission under H-1B1 is for one-year period, although H-1B1 visas are multiple entry and valid for a maximum of 18 months. Extensions are permitted in one-year increment. Although there is no maximum period of stay, after five consecutive extensions, any subsequent extension will count against the overall H-1B cap. Moreover, similar to TN visas, the dual intent feature of H-1B is not recognized for H-1B1 Beneficiaries. As a result, a pending Adjustment of Status application can result in a denial of an H-1B1 extension request or entry into the U.S on H-1B1 visa. Nevertheless, USCIS has stated that a pending or approved employment- or family- based immigrant petition filed on behalf of an H-1B1 Beneficiary is not sufficient to impute immigrant intent. As a practical matter, filing the immigrant petition is not advised until the H-1B1 Beneficiary changes status to H-1B.

H-4 Spouses of H-1B Workers May Soon Be Able to Work in the U.S.

On May 12, 2014, the DHS released its proposed rule on employment authorization for certain H-4 spouses, as long as the H-1B worker’s employment-based green card application process is well underway. Under the proposed rule, eligible individuals would include H-4 dependent spouses of principal H-1B workers who (1) are the Beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or (2) have been granted an extension of their authorized period of stay in the United States based on Sections 106(a) and (b) of AC21, which permit extension of H-1B authorized period of stay beyond the initial 6-year period in one-year increments if a PERM labor certification application or an I-140 has been pending adjudication for at least 365 days. USCIS anticipates issuing final regulations by the end of this year. Consistent with granting employment authorization to spouses of E-1/E-2 and L-1 Beneficiaries, the DHS does not intend to extend the eligibility for employment authorization to H-4 dependent children (unmarried children under 21).

China EB-3 Retrogressed

In our last month’s newsletter, we discussed possible downgrading from EB-2 to EB-3 for Chinese nationals with approved I-140 petitions because China EB-3 priority dates had been moving faster than those of China EB-2. However, the June 2014 visa bulletin shows retrogression in China EB-3, from October 1, 2012 to October 1, 2006, whereas China EB-2 progressed slowly from April 15, 2009 to May 22, 2009.