Foreign Professional Workers and the H1-B Visa

Immigration and immigration compliance is in the headlines on a daily basis affecting both large and small companies. If you are the human resources director for a company looking for the professional services of an individual who requires a visa to work in the United States, you need to consider the full range of options and strategies available to you with respect to one of the most commonly used employment (professional)[1] visas — the H-1B visa.

The H-1B visa allows a foreign individual to be employed in the United States by a specific U.S. employer at a specified job in a particular location. Currently, immigration law allows for a maximum of 85,000 H-1B visas each fiscal year (“CAP”). This CAP includes 65,000 visas for professional or specialty occupation positions and 20,000 visas for individuals with a Masters (or advanced) degree from a U.S. academic institution. Once the CAP is reached, the U.S. Citizenship and Immigration Service (USCIS), the federal agency responsible for reviewing, approving or denying these petitions, stops accepting petitions for H-1B visas.

The fiscal year, for immigration purposes, starts on October 1 and ends on September 30. Although H1-B visas are only valid beginning October 1, filing for these visas begins on April 1 of each year. The USCIS recently announced that during the most recent visa filing period it received approximately 172,500 H-1B petitions. Because the number of visas filed far exceeded the number allowed, the USCIS conducted a lottery of all petitions received and accepted fewer than half of those filed.

While this is discouraging for those affected by the decision, there are a number of employer categories and foreign worker categories that are exempt from the statutory CAP. For example, non-profit entities affiliated with an institution of higher education may be exempt. Similarly, a foreign worker who has (or has had) an H-1B visa may also be exempt. The result may be that a U.S. employer could sponsor an H-1B visa applicant without regard to the statutory CAP.

Consider your options. Include within that panoply of considerations consultation with an immigration attorney to assist in the formulation of your best strategy.

For assistance, you are invited to contact me at alopez@cowlesthompson.com, 214-393-4917.

[1] For immigration purposes, “professional” means an individual with at least a bachelor’s degree (or experience equivalent to a bachelor’s) and professional services means a position that requires at least a bachelor’s degree.