THE H-1B visa is a non-immigrant visa that allows business professionals to work in the United States for a specific amount of time. The purpose of the H-1B visa is to give US employers the opportunity to hire foreign professionals if a US citizen or resident is not available. In order for the H-1B visa to be issued, both the employer and employee must satisfy specific requirements. The H-1B visa is limited. The annual limit on H1B approvals is 65,000, with a separate allocation of 20,000 visas for beneficiaries who hold US masters’ degrees or higher.
Last year, the cap was reached on the first day the cap opened. USCIS held a random selection process which left about half of the applicants without a visa. This year, the cap opened on April 1, 2014. USCIS has announced that the cap was reached on April 4, 2014. USCIS will also announce a date for the random selection procession which means that they have received a substantial amount of visas applications beyond the cap limit. It is estimated that more applications were received this year than last year. Many clients that have filed H-1B petitions this year are already planning alternative relief in case they are not selected by USCIS.
Despite the cap being reached, it does not prevent the mobility of current H1-B employees. Therefore, a person currently in H1-B status can change their employers if they so desire. Employers can also hire those already in H1-B status and file new petitions for them. These petitions will not be subject to the cap.
For those of you that have contemplated the H-1B visa, there are other options available. If the applicant is abroad, a B-1 visa can be obtained at the consulate to enter the United States for business reasons. Another option is contemplating attending a US school to explore educational opportunities by obtaining an F-1 visa.
If you are an entrepreneur or businessman and would like to invest in a small business, you may want to consider obtaining an E-2 treaty investor visa. The Philippines is a treaty country which allows Philippines nationals to apply for E-2 visas. The E-2 visas do not require an employer or petitioner. The investment enterprise would be your petitioner. An applicant can either change their status in the United States or obtain the visa abroad. An investor applicant must prove a substantial “at-risk” investment in a real and operating commercial enterprise which has the potential to create jobs for US residents and citizens. This visa should not be confused with the EB-5 (million dollar) investment visa as E-2 visas does not require a specific amount of investment capital. The E-2 visa is a great way to start your business and obtain status in the US
The L-1 intra-company transferee is also a viable option so long as the parent-subsidiary company relationship may be established and the visa applicant can prove that he has been employed in a managerial, executive, or specialized knowledge capacity for at least one out of the past 3 years.
In short, although the H1-B cap has been reached, there are many viable options for US visas. There is still hope! In assessing your options, it is crucial to remember that immigration laws are strict and complicated. Obtaining any visa may be difficult. The lawyers at Wilner & O’Reilly, APLC are ready to assist those exploring immigration options. Our lawyers are board certified specialists and former immigration officers. Should you need our assistance, please contact our office at (714) 919-8880 and schedule your free consultation today.
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Kelly O’Reilly is a nationally known immigration expert and former immigration officer. He is a highly sought after speaker on immigration and employment compliance issues. Mr. O’Reilly serves as the current chair of the Riverside County Bar Association Immigration section and is a partner in the full-service immigration firm of Wilner & O’Reilly where he provides free consultations. Mr. O’Reilly can be contacted at (562)207-6789 or he welcomes email inquiries at [email protected].
