Immigration Law Newsletter, May 2015
Congress Must Enact H-1B Visa Reform
During the H-1B visa application period of April 1 to April 7, 2015, U.S. Citizenship and Immigration Services (USCIS) received nearly 233,000 applications, a significant increase over last year when 172,500 applications were filed during the first week of April 2014. Currently, only 85,000 H-1B visas are issued, which means that about two-thirds of applicants will have their petitions sent back without even being reviewed.
The number of applications filed has increased year after year during the past three to four years, which indicates increasing demand for high skilled workers as the U.S. economy continues to improve. Thus, the demand for H-1B visas will likely keep increasing, making the current H-1B visa problem even worse in the coming years.
In January 2015, the Immigration Innovation (“I-Squared”) Act of 2015 was introduced in Congress, which, if passed, would help alleviate some of the problems with the H-1B visa program. The key changes in the I-Squared Act that would affect the H-1B visa program are as follows:
- Increases the annual cap for H-1B visas from 65,000 to 115,000. In addition, the cap can be adjusted from 115,000 to 195,000 within a single fiscal year if there is existing market demand. The cap cannot drop below 115,000 and likewise cannot go above 195,000.
- Eliminates the annual cap of 20,000 for H-1B visas issued under the U.S. advanced degree category.
- Allows H-4 dependent spouses of all H-1B visa holders to obtain work authorization.
A bipartisan group of Senators had introduced a similar bill in 2013, but it did not pass. Since demand for H-1B visas continues to rise, Congress must increase the H-1B visa limit to allow other companies to fill their legitimate needs for high skilled workers. Congress previously raised the cap in 1999 to 115,000 and again in 2000 to 195,000 before lowering it to the current limit of 85,000 in 2004.
Clearly, the U.S. economy and market demand are much different in 2015 than in 2004. The area of high-skilled immigration is long overdue for an update, so the hope is that the 114th Congress will pass the I-Squared Act of 2015 and provide relief to the thousands of U.S. employers seeking to hire specialty occupation foreign workers.
Currently, the most commonly used alternate visas to the H-1B visa for employment in the U.S. are:
- TN visa: For Canadian or Mexican citizens.
- E-3 visa: For Australian citizens.
- H-1B1 visa: For Chilean and Singaporean citizens.
- Green cards in EB-2 category: For individuals with either an advanced degree or higher, or a Bachelor’s degree plus five years of progressive relevant professional experience. Green cards for citizens of countries other than China or India may be approved in one year.
- L-1 visas: For intracompany transfers from foreign operation to U.S. operation of Executives / Managers (L-1A) or employees with specialized / advanced knowledge (L-1B).
Companies that frequently apply for L-1 visa category can benefit by filing a blanket L-1 petition for its intracompany transferees. The blanket L-1 petition is filed in anticipation of future transfer of employees to the U.S. rather than for any particular individual. Under blanket L-1 program, the company will receive one approval from USCIS for all transfers involving managerial and executive (L-1A) employees, as well as professionals with specialized knowledge (L-1B). The approved blanket L-1 is valid for an initial period of three years, with the option to file for an extension at the end of three years. The extension of blanket L-1 petition, if approved, is valid for an indefinite duration.
In order for a company to qualify for blanket L-1 petition, the following has to be met:
- U.S. Company and Foreign Company must be engaged in commercial trade and services;
- U.S. Company must be doing business for at least one (1) year;
- The U.S. Company has three or more domestic and foreign branches, subsidiaries, and affiliates; and
- U.S. Company along with the Foreign Company must meet one of the following criteria:
- U.S. Company must have obtained at least 10 individual L-1A or L-1B case approvals in the twelve (12) month period before the date of filing blanket L-1 petition; or
- U.S. sales of at least $25 million; or
- U.S. Company must have a workforce in the US of at least 1,000 employees.
In addition, there must be a qualifying parent/subsidiary or affiliate relationship between U.S. Company and Foreign Company and the L-1 applicant must be working for Foreign Company in a managerial or executive capacity, or as a professional, for at least one (1) year within the past three (3) years.
On approval of the blanket L-1 petition, the company can bring individual employees to the U.S. on L-1A or L-1B visa category. The company has to send the prospective employee, a completed Form 129S, Nonimmigrant Petition Based on Blanket L Petition; a copy of blanket L approval notice; supporting letter; and other required evidence for L-1 visa interview at the U.S. Consulate overseas. Canadian citizens can submit the completed Form 129S; copy of blanket L approval notice; supporting letter; and other required evidence to the U.S. Customs and Border Protection (CBP) officers at Canadian airports or at border crossings for admission to the United States.
The approval of blanket L-1 petition provides the employer with the flexibility to transfer qualifying employees to the U.S. quickly, with short notice, and without having to file individual petitions with USCIS.