The H-1b Cap Has Been Met; What Is Left For The Foreign National Who Wants To Work Legally In The United States?

Elise Schwarz (www.SchrefflerSchwarz.com) comments on the recent introduction of the yearly cap on the number of H-1B visas granted to foreign nationals in specialty occupations and why it has been effectively withdrawn, at least until April 2008.

(PRWEB) May 31, 2007 -- New York Immigration attorney Elise Schwarz comments on the recent introduction of the yearly cap on the number of H-1B visas granted to foreign nationals in specialty occupations and why it has been effectively withdrawn, at least until April 2008.

All is not lost, however, for many foreign nationals who want to work in the United States in a non-immigrant capacity

The first day to file the application for the visa this year (to become eligible to work in October 2007) was April 1, 2007. "The cap was pretty much reached on the very first day," states Schwarz. Foreign nationals holding a Masters degree or higher from a U.S. University had the advantage of an additional 21,000 chances to get the visa. But that cap was reached in the first month. While nationals of certain countries and employees of certain organizations receive more welcoming conditions and exemptions in this visa category, for the most part, the H-1B has had its day, at least for this year.

"All is not lost, however, for many foreign nationals who want to work in the United States in a non-immigrant capacity," continues Schwarz. "There might still be a visa that fits."

Under the North American Free Trade Agreement, Canadians and Mexicans whose occupations are one of 64 listed under the NAFTA schedule can come in to the United States to work under the TN-1 and TN-2 visas, respectively. Like every other non-immigrant visa, the individual must show that he or she does not have intent to remain in the United States permanently.

Other treaty based visas fall under the "E" category. If a national is from a country with which the United States has signed a Treaty of Commerce and Navigation E-1 and E-2 visas are available for the purposes of trade and investment. The E-1 treaty trader must be coming to the United States to carry on substantial trade between the United States and his or her country of nationality.

The E-2 treaty investor must be coming to the United States to develop and direct an operation or enterprise in which he or she has invested, or is actively in the process of investing, a substantial amount of capital. Executives and specialized employees may also qualify for this visa.

The E-3 visa, also treaty based, is available to Australian professionals who come to the United States to perform a professional specialty occupation. The qualifying Australian must have a Bachelor's degree and the position that person will fill must typically require a related bachelor's degree for entry-level employment.

For those from countries other than those with which the United States has signed a treaty, or for whom, for whatever reason, a treaty-based visa is not appropriate, other visas are available. Individuals employed by, or owners of, businesses abroad, can qualify for a B-1 visa to come to the United States and perform services here which benefit their foreign employer or business. Although they cannot accept local employment in the United States and must not render productive services here, this is, nonetheless, an extremely useful visa for those who, for example, need to attend numerous business meetings or negotiate a cross-border deal. Indeed it is used by a range of individuals in a range of circumstances, including foreign corporate personnel who come to the US to set up a subsidiary; individuals exploring the possibility of investing in the U.S.; those attending an executive seminar or those participating in scientific, educational, professional, religious or business conventions, to name a few. The visa can be issued for "as long as is reasonable for the business to be performed" although it is typically issued for an initial six months to one year, it can then be extended in six month increments so long as the purpose for the visa remains.

Plenty of visas are available that do allow for gainful employment in the U.S. Managers, executives, and those in a position requiring specialized knowledge, who work for U.S. firms, corporations, or other legal entities or their affiliates or subsidiaries of a company abroad, and have done so for one year out of the last three, can come to the U.S. on an L visa for intra-company transfers.

Those coming to the US to do on-the job training have two main options. The H-3 visa is available to individuals coming to the United States to complete training which is not available in their home country. This visa, however, can be issued for a maximum of 24 months only. If the individual requires an extended period of stay, a more suitable visa is likely to be the J-1. The J-1 is an ideal visa for students and professors, au pairs and nannies, as well as industrial trainees and specialists, although it does require a sponsoring entity. The J-1 is initially valid for eighteen months, but various waivers and extensions are available.

And there's more. The O category of visa is available to those foreign nationals who can prove their extraordinary ability in the arts, sciences, business, education or athletics, or extraordinary achievement in film or television. There is even a related visa for their accompanying essential support personnel. Internationally recognized entertainment groups and sports teams can work in the United States under the P visa. Religious workers may come to the United States to work in their religious professions or vocations under the R visa. Foreign press, radio, film, or other foreign media personnel can use the I visa. And for the culturally curious, the Q visa is available for cultural exchange programs which have been designated for the purpose of providing practical training, employment, and the sharing of history, culture and traditions of the country of aliens nationality.

There are other visas available, including some which are not based on the recipient's own employment but allow that individual to work nonetheless.

While none of these visas fully substitutes the general applicability and availability of the H-1B visa across the board for professional specialty occupations, it is clear that, perhaps with some further probing of a foreign national's specific circumstances, oftentimes, there is another option which will make it possible for that individual to come and work legally, prosperously, and, hopefully, mutually beneficially, in the United States.

This article is intended for general immigration purposes only. It does not constitute legal advice, nor is it intended to serve in place of legal advice. You should consult with an attorney for individual advice regarding your own situation.

Elise Schwarz is a partner at the New York, NY Law Firm of Schreffler Schwarz. Her practice areas include immigration law and business litigation. Neil Schreffler is also a partner at the Manhattan based Law Firm. His practice areas include Personal Injury, Nursing Home Abuse and neglect cases and Matrimonial matters. Their website is SchrefflerSchwarz.com
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