Business Immigration Horizon: The Big Pictures

Systems Analysts and Other Specialists Watch The Clock Closely As Congress Considers Relief

A new fiscal year has just begun with the INS. On October 1, 1998, the new annual allotment of H-1B ("Specialty Occupation") visas was released. U.S. employers may now go forward with literally thousands of job offers that have been on hold since May 1998 due to the exhaustion of last year's quota. However, time is of the essence for all new hires, since the newly-released visa allotment will likely be exhausted by December 1998 unless Congress provides relief.

Since 1990 the quota for H-1B visas has been 65,000 annually, with the fiscal year beginning each October 1. In 1998, the quota was exhausted in mid-May, resulting in thousands of H-1B visas being stalled until the October arrival of the new visa allotment. As we go to press (in order to provide timely information to you in this issue's green card lottery article), Congressional action is underway, with a proposed increase of the allotment to 115,000 visas.

The annual quota only applies to new H-1B visas and not to H-1B "transfers." A transfer involves an H-1B worker who is moving from one employer to another. U.S. employers may, therefore, proceed with petitions for foreign workers who already hold an H-1B visa and are not subject to the quota and its delays. The worker may not, however, join the new company unless and until the transfer is actually approved by the INS. Approval can take as long as 90 days to obtain from the INS. For new H-1B hires, however, timing is critical so that the paperwork is not stalled for months on end. The worker, of course, cannot be placed on the payroll as a U.S. employee unless and until the H-1B petition is approved. Employers must, therefore, plan strategically for their staffing needs, not only to meet their business timetables but, as well, to deal with the H-1B crisis.

House bill 3736 raises the H-1B quota to 115,000 visas for FY 1999 and FY 2000 and then drops it to 107,500 for FY 2001 and 65,000 for FY 2002. Tougher provisions accompany the visa increase, including higher government filing fees on all H-1B petitions, stronger layoff provisions for "H-1B dependent" companies, and increased penalties for violations. Employers would also be prohibited from recouping funds from an H-1B employee who departs the company prior to a contractually agreed date. The White House has indicated that the President will sign the bill if approved by the Senate. Our next newsletter will provide a detailed analysis of the new law, or of the ongoing H-1B visa crisis, depending upon the outcome in Congress.

As soon as an employer obtains an H-1B visa for any employee, new or transferred, an immediate assessment should be made as to what will be done when the H-1B expires in year six. (An H-1B visa cannot be extended past the sixth year of the worker's cumulative physical presence in the U.S. in H-1B status.) This strategy applies regardless of whether Congress provides H-1B quota relief. Permanent residency time frames are long, creating a tight squeeze on accomplishing permanent residency during the six-year H-1B window. (One proposal, known as the Watt Amendment, would have reduced the window to four years, placing an even tigher squeeze on the process. Fortunately, this amendment was voted down in the House.)

The H-1B category is available to foreign workers holding a U.S. bachelor's degree or the equivalent. They must be coming to work in an industry which generally requires such a degree in order to perform the job in question. Formerly known as "professional" visas, these are now called "specialty occupation" visas and include, among other occupations, systems analysts, portfolio analysts, engineers, medical doctors, attorneys, accountants, and a variety of other fields.

Under the proposed legislation, an employer is "H-1B dependent" if it employs more than 50 full time employees, at least 15% of whom are H-1B visaholders. These employers must, among other things, attest that no displacement of a U.S. worker employed by them will occur within the 90-day period before and after the filing of an H-1B petition. As well, they cannot place the H-1B visaholder with another employer unless they also attest that they have inquired and have no knowledge that the other employer has displaced or will displace a U.S. worker within the 90-day period before or after the H-1B visaholder is placed with the other employer. This spells trouble for H-1B leasing companies.

In an effort to accomodate small and start-up companies, the House bill provides that employers with 1-25 employees or 26-50 employees are not "H-1B dependent" unless they employ more than 7 or 12 H-1B visaholders, respectively. In addition, regardless of company size, these attestations are not required if the H-1B worker holds a masters or equivalent degree or will earn $60,000 or more annually.

Notes:

1. All of the following processing times run from the date an application is received by the government. Preparation time prior to filing the application depends heavily on client participation and promptness in providing documents and information. Preparation time generally ranges from 2 to 30 days in addition to the time shown.

2. H data includes average time required to obtain labor department and related pre-filing clearances. These times may vary widely as the H visa crisis continues.

3. Processing times include both the I-140 stage and the subsequent I-485 stage. Generally, travel and work permission may respectively be obtained on or before the 45th and 91st days after the filing of the I-485.

4. For business green cards, look to the state where the employee will perform the work. You will see the total number of days required to complete a business green card. If labor certification is involved, add an average 500 days. For example, processing in Vermont requires 240 days, but if a labor certification is involved, add the average 500 days for a total time of 740 days to complete a business green card.

Green Card Lottery Now Underway

The State Department is now accepting green card lottery applications between October 1 and October 31, 1998. As a result, 50,000 green cards will be issued to eligible foreign nationals, regardless of whether they are abroad or in the U.S. legally or illegally. Winners will be randomly selected. As with all lotteries, the odds of winning are small. However, a winning selection would result in greatly reduced time and expense for a green card.

Business personnel-even those with pending green card efforts-should in most instances participate to reduce the expense and waiting periods encountered in conventional green card procedures.

The official lottery rules and an approved application form are available online at http://travel.state.gov./.

A "native" includes someone born within a qualifying country, or someone eligible to be "charged" to that country. A person may be charged to the country of birth of a spouse; a minor dependent child may be charged to the country of birth of either parent; and an applicant born in a country of which neither parent was a native or a resident at the time of the birth may be charged to the country of birth of either parent. This notion of chargeability will expand eligibility for some individuals, so please look closely at this to determine eligibility. The government does not charge an application fee, but the application and envelope must be in a specific format to qualify. A photo and signature are required.

A winner's spouse and unmarried children under 21 automatically win. The employee and the spouse should each file one application to double the chances of winning. Only one application per person is allowed. The filing of more than one application per person results in disqualification. Children should apply separately, regardless of age and marital status, if they (1) hold the equivalent of a high school degree or (2) have two years work experience during the past five years in an occupation requiring two years training or experience.

"Natives" of the following countries are ineligible for the lottery: Mainland China, Taiwan, India, Philippines, Vietnam, South Korea, United Kingdom, Poland, United States, Canada, Colombia, Mexico, El Salvador, Jamaica, Dominican Republic, and Haiti.

HORIZON is designed to provide accurate and general information but should not be considered legal advice.

HORIZON is published by Littler Mendelson in order to convey recent developments in immigration law.

"Just Visiting": A Look At Short-term Business Visa Options

The Visa Waiver Pilot Program, which allows nationals of 25 countries to enter the United States for 90 days without a visa, eases short-term business travel. The following countries participate in the VWPP: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, San Marino, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. Eligibility is based on nationality, not place of birth.

The 90-day visa waiver entry may not be extended except in the event of extreme emergency. As well, the visa waiver traveler may not change status while in the United States to the E, H, L or B temporary business categories. Contrary to popular belief, a brief visit to Canada or Mexico does not restart the 90-day clock. The visa waiver is an excellent option for business visitors who will remain on a foreign payroll, will not stay longer than 90 days, and will not seek to change their status while in the United States.

If more flexibility is desired, however, a conventional B visa (which allows entry for up to one year per visit, with a six-month extension thereafter and the ability to change to E, H or L business status while in the United States) should be obtained at a U.S. Consulate abroad prior to entering the United States.