H-1B Visas and H-1B Transfers

The Dallas, Frisco, and North Texas lawyers of Rabinowitz & Rabinowitz, P.C. begin all H-1B cases by analyzing both the present and future needs and goals of the U.S. employer and the foreign-born prospective employee. We focus on strategic immigration planning with an eye to a comprehensive solution that best supports staffing stability on the business side, corporate regulatory compliance programs that provide peace of mind to the employer, and a roadmap for the future for the foreign-born prospective employee. At Rabinowitz & Rabinowitz, P.C., we know that the strategic immigration planning we do for both businesses and employees is exceptionally important. We invest the time to know our clients, we help them chart the smoothest path to achieve their short- and long-term immigration goals, and we never lose sight of the fact that an individual’s dreams can result in a family tree with roots in a new country.

U.S. employers and foreign-born university graduates have long looked to the H-1B nonimmigrant visa for specialty workers, both for the purpose of short-term employment authorization and as part of long-term staffing and immigration planning. These visas provide temporary, employer-specific work authorization that is tied to specialty occupation positions requiring a bachelor’s or higher level college degree in the specialty, and the theoretical and practical application of a body of highly specialized knowledge.

F-1 Students

For an F-1 student, H-1B visa status may be the next stepping stone for continuing U.S. employment authorization following exhaustion of a student’s available period of authorized practical training. Many students also hold dear the dream of longer-term work and life in the United States. Consequently, the strategy underlying the filing of an H-1B visa petition needs to include attention to how the proposed employment forming the basis of that petition may fit into a long-term plan to eventually apply for lawful permanent resident, or Green Card, status.

Underlying H-1B nonimmigrant visa petitions are Labor Condition Applications in accordance with which employers must make certain labor-related attestations regarding wages, working conditions, place(s) of employment and more. Further, employers are required to maintain the documentation that supports those representations. It is the mission of Rabinowitz & Rabinowitz, P.C. to ensure that employers understand the requirements of the H-1B program, that they have the information they need to set up and maintain effective regulatory compliance programs, and that they have the continuing support from us that leads to peace of mind.

H-1B Visa Numerical Cap

The annual H-1B visa numerical cap has been a frustrating factor for businesses and prospective foreign-born employees alike. In recent years, the demand for H-1B nonimmigrant visas has greatly exceeded the annual numerical caps for both the general pool of applicants holding a Bachelor’s level degree (at 65,000 visas per fiscal year, less the total of 6,800 visas which are set aside per year for nationals of Chile and Singapore) and for applicants holding U.S. earned Masters or higher level degrees (at 20,000 per fiscal year). A first step in addressing the uncertainty relating to the numerical cap is to see whether the attributes of the target position and/or of the employee’s visa and work history makes the newly envisioned employment subject to the cap or exempt from it.

In addition, “porting” provisions for H-1B changes of employers can in qualifying cases provide relief from petition processing time waits for U.S. businesses and foreign-born employees. Some current H-1B employees wishing to change employers become authorized to accept employment with the new employer upon the filing of a new H-1B nonimmigrant visa petition by that employer.

A creative analysis of employer requirements and foreign-born beneficiary qualifications can sometimes yield insights into alternative nonimmigrant visa classifications which might meet both the employer’s needs and the prospective employee’s goals, regardless of a position otherwise being subject to the H-1B numerical cap.

In working with U.S. employers to find a strategic solution for those cases where the main H-1B numerical cap would either preclude the filing of a new H-1B petition during the fiscal year, or where the uncertainty of being chosen or not through the lottery program instituted by USCIS to address the large number of applications in excess of the cap amount is unsettling from a business and personal planning standpoint, Rabinowitz & Rabinowitz, P.C. performs a comprehensive analysis to consider other visa classifications which may be also be appropriate. For example, is the intended foreign-born employee a national of either Chile or Singapore for which countries special H-1B1 specialty occupation visas are separately numerically reserved within the general cap (1,400 for nationals of Chile and 5,400 for nationals of Singapore) as a result of Free Trade Agreements with these countries? Or, is the employee a national of Australia for whom the alternative E-3 specialty occupation visa is still available under yet another separate cap?

Looking more broadly, might the employee be eligible for an L-1 intracompany transferee visa for which no numerical caps exist? Would the attributes of the target position and the prospective employee’s qualifications make a TN visa under NAFTA a viable option? What about an O-1 nonimmigrant visa for a prospective employee who can prove extraordinary ability in the sciences, arts, education, business or athletics? In other circumstances the E-2 treaty investor might be an appropriate vehicle for obtaining the services of some foreign-born workers. In yet other circumstances, albeit limited ones, the B-1 business visitor status might be appropriate if the business activities within the U.S. fall squarely within the specifically authorized purposes.

The important thing to remember is that all is not lost for employers and prospective foreign-born employees simply because the H-1B cap has been reached. At Rabinowitz & Rabinowitz, P.C., we enjoy engaging in strategic immigration planning for our clients and helping them to find comprehensive solutions that meet their needs, while providing the smoothest and most cost-effective path that respects the corporate bottom line and personal finances. We warmly welcome businesses and individuals to contact our office to schedule an evaluation of eligibility for H-1B nonimmigrant visas, H-1B1, E-3 and other possible United States immigration benefits.