Posted On: May 31, 2008

Alternatives to the H-1B Visa for individuals who did not make the H-1B Quota

Now that the H-1B lottery has been held and all of the new H-1B visas for the 2008 fiscal year have been allocated, what options do employers who are looking to hire foreign national professionals have? Here are some creative solutions to this problem:

H-3 Visa
The H-3 Visa is not an alternate visa option for anyone who would be eligible for an H-1B visa. However, it is an alternative option for individuals who would benefit from a training program. This category does not apply to physicians.

O-1 Visa
The O-1 visa is suited for individuals of extraordinary ability or achievement. The O classification is a useful and flexible alternative to the H-1B program because there is no overall limit on time in the classification and there is no cap. O-1 beneficiaries in the sciences, arts, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim.”

E-3 Visa
The E-3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore to be eligible for the visa, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.

L-1 Visa
The L-1 visa is an option for international organizations with offices in the United States who transfer employees to the United States for temporary periods of time. In order to be eligible for an L-1 visa, the petitioning entity must prove that the beneficiary of the visa has worked for the non-U.S. based sister company/subsidiary for at least one full year within the last three years as an executive, manager or employee with specialized knowledge.

Posted On: May 30, 2008

H-1B Petitions: When Should You as the Employer Amend or Terminate Them?

H-1B petitions filed on behalf of employees are generally filed for a specific job that has specific job duties. When there is a material change in the terms of an H-1B beneficiary’s employment, the petitioning employer is legally required to file a new H-1B petition or amend the original petition.

What is a material change?

A material change is a change to the H-1B beneficiary’s job that substantially changes the terms and conditions of the H-1B employee’s job. The following are examples of material changes to a job for H-1B purposes:

1. A change in the employment location;
2. A change in the job duties (i.e., when the employee’s job duties change from one specialty occupation to another);
3. A change in the hours of employment (i.e., the employee was originally hired on a full time basis but now is working on a part-time basis); and
4. A change of employer (i.e., a merger or acquisition where the new employer holds a different Federal Identification Number).

When should an H-1B Amendment be filed?

Although there is no specific time to file for a new or amended petition, it is recommended that the amendment be completed before the material change in the job occurs.

What should employers do when they terminate H-1B employees?

Employers have many obligations when they terminate H1-B employees. An employer must always notify the USCIS of a material change. Therefore, the employer must inform the USCIS in writing that the H-1B employee does not work for it with a letter explaining the change. This way the USCIS has a chance to revoke the petition. A notification to the USCIS is crucial in ending the H-1B employers’ obligations such as paying the employee their wages. A bona fide termination occurs when the H-1B employer tells the USCIS of the termination, the H-1B petition has been cancelled, and that the employer provides the employee payment for return back to his or her home country. The USCIS states that they should be immediately notified of an H-1B employee’s termination so that they can make the necessary adjustments and changes to the employees H-1B status. In order for it to be considered a bona fide termination there must be notification of this termination in the manner stated above. The bona fide termination actually occurs on the date the employer informs the USCIS not the date the USCIS revokes the employees H-1B status.

Posted On: May 29, 2008

H-1B Visa: An Option for Owners and Managers of U.S. Businesses

Although the H-1B Visa is not usually thought of as an option for an investor/entrepreneur, it may be utilized by some of these foreign business entrepreneurs. Foreign investment in U.S. businesses creates economic benefits beyond merely a visa benefit for the foreign investor. The Small Business Administration (SBA) estimates that 99 percent of the firms in the United States are small businesses, and small firms have generated 60 to 80 percent of the net new jobs annually over the past decade. It is estimated that these small businesses employ 41 percent of the United States’ high-tech work force. These days, immigrants have an ever increasing role in the creation of these small businesses. For instance, in the 1990’s, Immigrant-operated companies accounted for $19.5 billion in sales and 72,839. Twenty-nine percent of these companies were in the technology sector.

Prohibition on Self-petitioning

For H-1B purposes, the United States Citizenship and Immigrations Service’s (USCIS) regulations define a U.S. employer as a "person, firm, corporation, contractor, or other association, or organization in the United States which:

• engages a [another] person to work within the United States; and
• has an employer-employee relationship with respect to employees under this part…”

This provision clearly makes it is impossible for an individual to self-petition for H-1B status. However, the H-1B visa is a viable nonimmigrant visa option for an individual who was to invest in a separately chartered legal entity that is legally separate from the H-1B employee. In such as situation, that entity could petition for that employee even if all the shares of the entity are owned by the H-1B employee. For example, a corporation, in certain circumstances, could file an H-1B visa for the employer/owner.

Moreover, the H-1B visa may not be a viable option for start-up companies petitioning for the sole-owner of the company. USCIS regulations require the foreign national to immediately be able to perform services in a specialty occupation. Therefore, if a new U.S. company is not yet viable enough to prove that the H-1B worker will immediately begin working in a specialty occupation, the petition may be denied by the USCIS.