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.