H-1B Visa: General
The H-1B visa is a nonimmigrant visa created for the employment of foreign nationals in specialty occupations requiring the minimum of a bachelor's degree. As an H-1B employee, a foreign national is allowed to remain in the U.S. for up to six years with employment authorization and the ability to travel to and from the United States. The foreign national's spouse and children are also allowed to enter under the derivative H-4 status, although they are not employment authorized (they may attend school, however).
In order to obtain H-1B nonimmigrant status, a foreign national must prove he/she has a degree which relates directly to the specialty occupation which he/she will be performing and the company must prove it requires a person with the foreign national's qualifications in that specialty occupation. The company must certify to the Department of Labor ("DOL") in the required Labor Condition Application ("LCA") process that it will pay the greater of the actual wage or prevailing wage for the position, and documentation must be retained by the company to prove compliance with these provisions of the regulations. The company will also be required to: (1) post notices of the intended employment of an H-1B employee; (2) provide a copy of the LCA to the foreign national; and (3) maintain a public file of specific documentation.
The H-1B Limit
The INS statute limit the number of new H-1B visas which can be issued each fiscal year. The current law provides for 65,000 H-1B visas each fiscal year ("FY").
Our booming economy, coupled with an unprecedented increase in the need for computer professionals has led to a dramatically increased demand for H-1B temporary nonimmigrant workers. Because of the increased number of computer-related jobs in the U.S., many of which rely on new or innovative technologies, the cap was reached for the first time in FY 1997.
The H-1B cap has been reached for FY 1998, and new visa numbers will not be released until October 1, 1998. Projections show that each fiscal year the cap will be reached earlier and earlier.
The H-1B cap exacerbates the problem facing many U.S. employers, including many of our clients. As our economy becomes increasingly global, bringing in H-1B workers becomes even more essential to America's continued economic growth. If American companies are prevented from hiring essential personnel to fill critical positions, an increasing number of jobs to dependant upon the H-1B visa will also go unfilled each year, resulting in a loss of American jobs. Another consequence will be the relocation of jobs dependant on computer technology to a country with more accommodating immigration laws.
The INS Policy
According to the Federal register, the INS will return any H-1B petition filed with the INS on or after May 11, 1998. The employer filing the petition will be advised in a notice to either resubmit the H-1B petition on or after October 1, 1998 (the beginning of FY 1999), when H-1B numbers will again become available, or to resubmit the petition and request employment commencing on or after October 1, 1998.
A Congressional Debate
Congress is currently working on a solution to the H-1B cap. Ultimately, employers would like to see the cap increased according to the needs of the industries. The H-1B classification contains many safeguards to protect U.S. jobs and employees. For example, an employer who wishes to petition to classify a foreign national as an H-1B nonimmigrant must attest that the employer will pay the employee a wage that will not adversely affect U.S. workers.
Congress needs to awaken and develop a sensible international human resource policy. Our current spectacular economy is successful because we attract more than our share of the world's investment and human resource capital. If we shun the brightest and the best people from working here, American jobs and industries will flow to other areas of the world. As Congress continues to draft and debate a bill that would increase the H-1B cap, we encourage you to contact your Senators and Representatives to voice your concerns regarding the H-1B visa.
Nonimmigrant Visa Alternatives If the H-1B cap is not increased, employers should be cautious and avoid becoming dependant on the H-1B visa. We encourage employers, large and small, to begin developing a plan to enable the employer to use other nonimmigrant visas for foreign national employees. The L-1 nonimmigrant classification is a status created for the employment of foreign nationals who are intracompany transferees. This visa is one of the most useful tool available to a company with a parent, subsidiary, affiliate, or branch abroad that needs to bring foreign employees to the United States. As an L-1 employee, a foreign national would be allowed to remain in the United States for up to seven years with employment authorization and the ability to travel to and from the United States. In order to obtain L-1 nonimmigrant status, the following items must be demonstrated:
- The U.S. employer and the foreign employer must have the required relationship;
- The foreign national must be employed in an executive or managerial position or a position requiring specialized knowledge; and
- The foreign national must have been employed by the foreign employer for one of the three years prior to the transfer.
The E-2 visa category is especially useful for business personnel seeking entry into the United States for extended periods of time to oversee or work in an enterprise that represents a major investment in the United States. In order to obtain an E-2 visa the following items must be established:
- A treaty of Commerce and Navigation or Bilateral Investment Treaty must exist between the United States and the country of the nationality of the investor.
- The company engaging in the investment in the United States must have the same nationality as the treaty country.
- The person, either the principal investor or the employee, who will enter the United States in the E-2 visa category must also be a national (a citizen, not necessarily a native) of the same treaty country through which the investing company qualifies.
- The treaty investor must intend to depart from the United States upon the termination of his/her status.
- The investor must make a commitment of funds that represents an actual, active investment. The business enterprise underlying the investment must represent a real operating enterprise productive of some service or commodity.
Please contact our office so that we may assist your company evaluate it's options and develop a strategy for it's future.