Ryan E. Lamb & Samuel J. Frederick
Foster Swift Business & Corporate Law Report
For employers interested in hiring a foreign worker for a "specialty occupation" (typically, a job that requires at least a Bachelor's degree or its functional equivalent), an H-1B Employment Visa is an option with a number of very attractive features: (i) duration – H-1B's are issued for an initial term of 3 years, with the option of a 3-year extension; (ii) dual intent – the visa holder can have a temporary intent or a permanent intent to reside in the U.S., which allows the visa holder to pursue permanent residency, if desired, without leaving the U.S. and without violating his or her temporary visa status; (iii) change of status – an H-1B can often be obtained in the U.S. without traveling to a foreign consulate to acquire the new visa and seek re-entry to the U.S.; and (iv) portability – in the event of a change in employment, an H-1B can be transferred to a different employer.
In recent years, a major hurdle has harmed the H-1B's effectiveness – the need to win the "lottery" in order to obtain a visa. As with many U.S. Visas, the H-1B's availability is limited by a quota system, subject to certain exceptions. Currently, only 65,000 "regular" or "cap subject" H-1B Visas are available annually, based upon a Fiscal Year that runs from October 1 to September 30 each year. Until 2009, recent filing years had experienced more than 120,000 applications for H-1B Visas filed on the first day of filing availability (April 1 each year, for an October 1 start date). All applications filed on April 1 were placed in a random lottery that resulted in approximately a 50% chance of obtaining an H-1B Visa, with losers and late filers out of luck until next year.
Recently, however, applications have slowed, and the cap has not been as quickly reached as in the past. Last Fiscal Year, the cap was not reached until January 26, 2011. At the beginning of this Fiscal Year, cap filings are again down. As of the last cap count dated May 5, 2011, 54,800 visas remain available. However, this can change quickly, depending upon national hiring and filing activity.
For years dynamic and growing companies have been frustrated by the cap's impact on their ability to hire the best and the brightest talents to meet their needs. As economic activity ramps up, you may wish to apply for a Visa before they run out.
If you have any questions regarding immigration visas, please contact us.