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US Immigration News
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IMMIGRATION UPDATES / 19 APRIL 2007 |
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By VANESSA S. BARCELONA |
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H-1B VISAS -- Here Today .... Gone Today!
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Albert Einstein once famously said, “I never think about
the future. It comes soon enough”. It’s good that people
like Einstein never worried about tomorrow. Perhaps such
pedestrian concerns are better left to the rest of us.
Certainly, for the many thousands of non-immigrant
professionals and specialty workers who will not be able
to work lawfully because they never even had a chance to
apply for the H-1B visa this year, the future is a big
concern.
Actually, even those who were able to apply have cause
to be concerned. I, too, am very much concerned as well.
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I have clients whom I may have to face soon enough, and
to whom I may be saying – “I did my job. I filed you on
the very first day, but you didn’t make the cut. The
computer didn’t pick you”. I’m so sorry.” For now, at
least for this very minute, I will try to be like
Einstein and not worry about it. That day will come soon
enough.
USCIS announced on April 3, 2007 that it received enough
H-1B petitions to meet the congressionally mandated
quota for the 2008 fiscal year, which begins on October
1, 2007. In fact, the quota was met and exceeded the
very first day of filing, on April 2, 2007. The very
same day the doors were opened, they were closed. And
actually, those who think they made it in, may not
really be in at all. We won’t even know until a
computer-generated random selection process determines
who made it in, and who’s out of luck. Such a
determination will be made weeks after receipt notices
will have been generated for all cases received on April
2 and April 3 (the day the announcement was made). Yes,
you read right. Let me say it again -- even though you
receive a receipt notice – your application may still,
in the end, be rejected. That is, if you are not one of
the lucky ones picked by the computer.
Only 65,000 cap-subject H-1B visas are allowed in a
given fiscal year. Add to that a specially carved out
allotment of 20,000 H-1Bs for those with U.S. master’s
degrees. As of late Monday afternoon (April 2),
approximately 150,000 cap-subject H-1B petitions had
been received. The government also accepted applications
for April 3. Add those to the 150,000 received on April
2. Petitions received on both those days will be allowed
entry into the “lottery” and announcements will be made
in the weeks ahead. So, the way I figure it, allowing
for a conservative estimation of total numbers received,
if your petition got there on April 2 or 3, you have
about a 1 in 3 chance, maybe 1 in 4……maybe one in 5?
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U.S. businesses use the H-1B program to employ foreign
workers in such specialized fields as engineering,
computer programming, architecture, the sciences.
Foreign workers use the H-1B program as a means to a
better life, as a way to live and work in the United
States, to bring their families to this country, as a
way to possibly obtain a green card in the future. What
we have here is obviously a disconnect between the law
as it exists today, and the changing needs of today’s
employment arena. The world is flat, after all. Or
hadn’t you heard?
So it would seem logical, then, that in the coming
weeks, maybe months, something will be done about this
“crisis”. It would seem logical, you would think, that
if something is amiss with the law, that people like you
and me would try to do something about it, that we would
urge our congressional representatives to see this
“disconnect” for what it is and make the necessary
changes. But laws don’t change overnight. In the
meantime, what do we do?
If you are here on a B-1 or B-2 or if you are student
currently on practical training, or a new graduate, and
you were counting on changing your status to that of an
H-1B, you may or may not like the idea of having to ride
out this period of not knowing, of waiting for a
computer to determine your fate. Think about
alternatives now, while you can still do something about
it.
Here are just a few points to consider:
1. Not all H-1B petitions are subject to the cap. If you
can possibly be sponsored by a company that is not
subject to the cap, try to get such sponsorship now!
What kinds of companies are not cap-subject?
a. Institutes of higher education (colleges and
universities)
b. Nonprofit organizations affiliated with institutes of
higher education
c. Entities related to or affiliated with institutes of
higher education
d. Nonprofit research organizations
e. Government research organizations
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2. Perhaps you can go back to school and get
that master’s degree
or that Ph.D. you had thought about pursuing,
or how about that second bachelor’s degree that you
wanted to go for in the first place but didn’t because
your parents thought it wasn’t practical?
3. In the alphabet soup of U.S. visas, the H-1B is
certainly one of the most widely known and most highly
pursued visa. |
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But it is not the only one. Could the J be
for you? How about the H-3? Or the O? the P? Heck, maybe
even the R? Possibilities and options abound. Do some
research, ask around, ask the experts.
The H may have been the most logical choice, but it is
not necessarily your only choice. Whatever you do, do
something. If you have a lawyer and they filed the H-1B
on your behalf, make an appointment now to see him or
her, and talk about alternatives. Maybe a different visa
category, perhaps? Or how about this? Out of all the non
cap-subject H-1B options, I like the “entities related
to or affiliated with institutes of higher education”
the most. I mean, “entity” can be just about anything;
“related” is so broad; and “affiliation”, however
tenuous, is still that, an affiliation! Maybe, just
maybe, that company you thought was cap-subject, isn’t
cap-subject after all!
Maybe I am going off on a limb. But it doesn’t hurt to
revisit old assumptions, just in case they were wrong.
It doesn’t hurt to revisit previously disregarded
options, just in case they don’t look as bad as waiting
around for a year…..in a foreign country. Doing nothing
now will mean that if you don’t get picked in the coming
weeks, you will have to wait around until next year,
when the new fiscal year starts. Maybe, just maybe, the
computer will pick you then. But then again, what if the
U.S. company that sponsored you now won’t want or need
you next year?
This too, shall pass. But I doubt that many of us can
afford to sit passively and wait a year before going
forward with lives and plans. Let us put our thinking
caps on and plan ahead. I guess I can’t afford to think
like Einstein after all. Can you?
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VANESSA S. BARCELONA is a partner in the law offices
of Barcelona & Pilarski, P.A. She is a licensed attorney
practicing primarily in the area of U.S. immigration law. She
is a graduate of the University of Florida, where she obtained
her J.D. and B.A. degrees. She is a member of the Florida Bar
Assn., The American Bar Assn., and the American Immigration
Lawyers Assn. She may be contacted at
Tel (239) 590-9864 and e-mail: vsbarcelona @ earthlink.net
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