January 20, 2006 Dear Clients and Friends,
H-1B “Masters Degree”
Cap Reached
The Immigration Service has announced
that the special allotment of H-1B visa
numbers for applicants possessing a U.S.
Masters Degree has been exhausted as of
January 17, 2006 for the current fiscal year
which ends on September 30, 2006. Any
petitions received by Immigration after
January 17 will be returned to the
Petitioner.
Beginning April 1, it will be possible to
file new H-1B Petitions seeking an October
1, 2006 start date.
It is still possible to obtain H-1B
status for regular cases in the following
situations:
- Extensions of H-1B status for aliens
currently employed in H-1B status by the
petitioner
- “New” employees who currently
maintain H-1B status with another
employer, OR who have previously been in
H-1B status in the past six years and
have not subsequently been absent from
the U.S. for more than one year
[note: if the prior H-1B employer was an
exempt employer as described below, the
new petition does require a number under
the cap and can not be filed at this
time.
Exempt Organizations
The following organizations are exempt
from the “cap” and may continue to obtain
H-1B status for new employees:
- institutions of higher education
- a nonprofit organization related
to or affiliated with an institution
of higher education
- a nonprofit research
organization or governmental research
organization
(These exempt classes are often referred
to informally as “educational H-1B” cases,
though this label is somewhat misleading.)
Note carefully: this does not exempt all
nonprofit organizations; only those
affiliated with an institution of higher
education
Alternatives to the H-1B
The inability to access the H-1B visa
status will require a closer look at other
visa alternatives. Briefly, these include:
- TN visa status for citizens
of Canada or Mexico
- L-1 status for employees who
have worked abroad for the same or
affiliated employer for at least one
year
- O-1 visa status for aliens of
extraordinary ability
- J-1 status available to
employers who have their own J-1 visa
program in place (these are generally
academic institutions)
- J-1 status through third
party sponsors where the goal of the
employer is to train the visa applicant
- NEW: E-3 visa status for citizens
of Australia-comparable to the H-1B but
not subject to the H-1B cap.
Finally, some applicants who might have
been considered for H-1B status may have the
ability to obtain an Employment
Authorization Document (EAD) independent of
the prospective employer. There are many
examples, the most common of which are the
following:
- An alien whose spouse is in the
final stages of applying for a green
card through his or her employer and who
as a result is already an applicant for
“Adjustment of Status.”
- An alien who may have (or will
consider) filing a “self petition” for a
green card as an alien of Extraordinary
Ability or on the basis of a National
Interest waiver
- An alien who has married or will
marry a U.S. citizen and will be
eligible to obtain an EAD on that basis.
Please feel free to contact our office if
you have any questions. |