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Minimizing Consequences of H-1B Cap


The H-1B nonimmigrant visa category is perhaps the most frequently used method for U.S. employers to hire foreign nationals on a temporary basis.’

An H-1B is available to foreign nationals who will be employed in the U.S. to work as a professional in a specialty occupation.’ A specialty occupation is generally defined as a position that normally requires at least a bachelor’s, or higher, degree.

‘In order to be eligible for the H-1B, the foreign national must have obtained the equivalent to at least a U.S. awarded bachelor’s degree in a field relevant to the occupation.’ While the H-1B can be a relatively straightforward way for employers to hire educated foreign nationals, there is a cap on the number of new H-1Bs that can be issued each year.’ Starting with Fiscal Year 2004, which began on October 1, 2003, the cap was reduced from 195,000 to 65,000.’

In February 2004, less then half way through the fiscal year, US Citizenship & Immigration Services (USCIS) announced that it was not accepting any additional cap-subject H-1B petitions for fiscal year 2004 because it had enough cases on file to meet the 65,000 cap for that year, which ends on September 30, 2004.’ Since that time, it has continued to adjudicate fiscal year 2004 cases.’ On April 1, 2004, six months before the start of the 2005 fiscal year, USCIS started accepting cases toward the 65,000 cap.’ Thus, even while it is adjudicating fiscal 2004 cases, USCIS has been receiving – and adjudicating – fiscal 2005 cases.

According to a public notice issued by USCIS on September 2, 2004, 45,900 cap subject H-1B petitions have been already received, and of this number 21,000 have already been approved.’ All of these cases have validity dates that begin on or after the 2005 fiscal year starts on October 1, 2004.’ Thus, it is possible that the H-1B cap will be reached before the fiscal year even begins, and that this cycle will continue unless and until Congress passes new legislation increasing the H-1b cap.

Given the growing unavailability of the H-1B category as an option for employing highly-qualified nonimmigrant professionals, employers may need to pursue alternative nonimmigrant visa options.’ One option that may be available to hire such professionals is the O-1 category.’ The O-1 is a nonimmigrant status for foreign nationals with distinction in their field of expertise including physicians, scientists, researchers, management consultants or professionals, IT professionals, engineers, writers, and so on.

The ultimate criteria for this nonimmigrant category is not so much what they do, but how well they do it.’ Therefore, in considering whether the O-1 is a viable option, it is important to review what skills and expertise the foreign national has that makes him or her so valuable.’ What does the foreign national do that others in his or her field cannot do, or cannot do nearly as well?’ Does this person have ‘a level of expertise indicating that the individual is one of that small percentage at the very top of the field of endeavor,’ or ‘a degree of expertise significantly above that ordinarily encountered in the’ field.’ If so, the O-1 may be a viable option, particularly as it is a category for which there is no numerical limitation.’

In evaluating the O-1 option, it is important to keep in mind that it does require a detailed showing of what makes this person ‘extraordinary’.’ The USCIS adjudicators in reviewing O-1 petitions focus on whether the foreign national is one of the small percentage who have risen to the very top of his or her field of endeavor.”Accordingly, in determining whether to pursue this option, it is critical to define the individual’s filed and his or her level of expertise within that field.’ Developing relevant evidence to meet the criteria set forth in the USCIS regulations is often a challenge requiring new and creative approaches.’ The common mistake many employers and attorneys make is to focus on only one of the criteria, namely, publications.’

Yet, there are nine other criteria listed in the regulations that should be given equal weight in determining an individual’s eligibility for extraordinary ability.’ Consider, for example, the individual’s ‘leading and critical role’ at a nationally renowned company, his or her ‘significant contributions’ via development of a cost-saving methodology, or ‘judging and evaluating the work of others’ through audits.’ These are just a few examples of how the existing regulatory criteria can be met in a particular case.

‘Incorporating the regulatory language is particularly important, as USCIS is more comfortable with its criteria, and will more readily approve a petition that is structured using its language.”Moreover, it is crucial to explain the individual’s skills and expertise in terms that a lay person – someone with absolutely no knowledge of the field – can understand.

While USCIS regulations list evidentiary criteria to meet the standards of the O-1, this list is not exclusive.’ Rather, the regulations provide that: ‘If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.” It is this regulation that gives employers the opportunity to become creative.’ Investigation and exploration into a particular field of expertise is essential to identify this ‘comparable evidence.” For example, depending upon the particular field, ‘comparable evidence‘ may include prestigious fellowships, expertise with advanced technology, or a rare combination of skills.’ The key is determining how individuals within that field are judged and evaluated, and to portray the foreign national according to those standards.’

Clearly not every valuable employee will be a successful candidate for an O-1.’ However, the O-1 category should be explored as a possible approach to overcome the limitations imposed by the H-1b quota.’ The widely held, but incorrect, belief that the O-1 standard of ‘extraordinary ability”is only available to Nobel laureates, or to research scientists with fifty or more publications, has dissuaded many employers from pursuing this option.’ In fact, for many highly-skilled professionals, the O-1 is a viable option that should be pursued.

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