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What is H-1B cap? If the annual cap has reached, what are the alternatives?

H-1B Cap:
The number of H-1B visas issued each year is determined by the Congress.  Starting from the fiscal year 2004, beginning on October 1, 2003, an annual H-1B cap has dropped to 65,000 of which 6,800 are set aside for nationals from Chile and Singapore. The total H-1B cap number available for fiscal year 2005 is therefore 58,200.

Reaching the H-1B Cap:
On October 1, 2004, U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions to meet the congressionally-mandated cap for fiscal year 2005. After this date, H-1B petitions that are subject to cap will be returned to the applicant.

Cap exempt employers:
The USCIS will continue to process petitions for new H-1B employment that are not subject to the annual cap if the foreign worker will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

Amendments, extensions, and transfers of H-1B:
The USCIS will also continue to adjudicate cases of current H-1B workers for amending the terms of employment, extending the amount of time of current H-1B employment, changing employment to a new H-1B employer from cap subject employers, or working concurrently for a second H-1B employer.

Submit H-1B next year:
If exemption to cap does not apply, U.S. employers cannot submit an H-1B petition on behalf of their H-1B workers until H-1B visas become available for fiscal year 2006. The earliest date to file a petition with an employment start day of October 1, 2006, would be April 1, 2006. Therefore, U.S. employers are unable to hire foreign professionals until October 1, 2006 unless other options apply to the employers and/ or the foreign professionals.

E-1 or E-2 visa
If the foreign worker is an actual investor, an executive, a manager, or an essential skill worker, an E visa might be an option if (1) the foreign worker has the nationality of one of the treaty countries, (2) at least 50% of the owner(s) of the U.S. employer is/are the national(s) of the same treaty country; and (3) the U.S. employer engages in a "substantial" trade or investment.

O-1 visa
O-1 visa could be an alternative for a foreign professional who has extraordinary ability in the sciences, arts, education, business, or athletics, or who has demonstrated record of extraordinary achievement in the motion picture or television industry.

Green Card Processing
Some foreign professionals might be eligible to file green card application without lengthy labor certification processing, and might be able to secure an employment authorization in a couple of months: (1) outstanding professors or researchers in the academic field; (2) people with extraordinary ability in the sciences, arts or business; (3) managers or executives who was employed for at least one year by a foreign subsidiary company of the U.S. employer; or (4) professionals with an advanced degree or with exceptional ability in the science, art, or business who will substantially benefit the national interest of the US.

Urge Congress to raise the annual cap:
To prevent a year long H-1B blackout, U.S. employers could send letters to Senates and Representatives requesting their support to raise the annual cap of H-1B, so that more foreign professionals could be hired by U.S. employers.

Consult with immigration lawyers:
Other options may apply to some professionals. We strongly advise people to consult with immigration lawyers to find out whether any alternatives are available based on their employment history, educational background, as well as professional experience. This article is provided for informational purposes only; it is not intended to establish an attorney client relationship nor be considered as legal advice.  Readers should not act upon without consulting with a competent immigration lawyer.

E-MAIL TO MARI MAEMOTO ESQ. AT legalpad@spinhan.com WITH ANY QUESTIONS.