Want to Work in the United State? - requirements for foreigners seeking employment in US - Brief Article - Statistical Data Included

HR Magazine, Sept, 2000 by Carla Joinson

If you're a foreign national, bring your alternative visa because they may no longer accept H1-Bs.

Companies that blinked at an inopportune moment during this past fiscal year probably missed their chance to file for employee H1-B visas. The Immigration and Naturalization Service (INS) had already received a sufficient number of H1-B petitions by Feb. 29 to reach its FY2000 H1-B cap of 115,000. The agency cut off further consideration for visas on March 21--only six months into the fiscal year.

Fiscal year 2001, which begins Oct. 1, 2000, doesn't promise much relief because the 2001 cap for H1-B visas is only 107,500. For FY2002 and onward--barring action by Congress--H1-B caps will revert to their former level of 65,000.

Although caps in FY1998 and FY1999 weren't reached so quickly, a hot economy and demand from the high-tech sector for information technology (IT) professionals will likely keep the pace for H1-B petitions brisk, notes Linda Dodd-Major, director of the INS office of business liaison in Washington, D.C. "There's also a gold rush effect," she says. "Businesses know the cap was met early the year before, so they hurry to get their petitions in."

In fact, Dodd-Major cautions, "There's a possibility that FY2001's cap will be reached before the fiscal year even starts."

That's because, although the cap for FY2000 Hi-B visas had a cutoff point in March, the INS kept the petitions filed before March 21, 2000--unless withdrawn by the employer--for consideration against the FY2001 cap. This means old petitions may already be ahead of new filings for FY2001. Furthermore, because employers were able to file for FY2001 visas as early as April, businesses that wait until the new fiscal year starts in October may already be out of time.

When H1-B Visas Aren't Available

If you are one of those people who waited until the last minute to file and have a hot recruit in the wings, you may want to explore some other avenues.

Immigration attorney Richard Maney of the Tampa, Fla., firm of Maney and Associates PA., suggests a couple of defensive measures. "For someone who's already here, ask if perhaps the person can be a full-time student in the interim," says Maney. "The person can't work but at least can be here legally."

Another alternative is to keep in contact with potential candidates. "You might say, We can't bring you here now, but if you'll make a commitment, we'll start the paperwork,' and so on," says Maney. "This is a life-changing decision for the employee. It can be very beneficial for that person to have extra time to make arrangements. Show the person, though, that you have a definitive plan."

Sometimes HR just doesn't want to deal with the frantic process of filing H1-B petitions. The procedure is complex enough, and, often, petitions are kicked back for corrections or additional information. With a little luck and perseverance, employers may find current H1-B visa holders who post for positions on the Internet or answer recruiting ads. But companies tempted to hire them should exercise care. "There is no grace period after an H1-B alien leaves employment," notes Dodd-Major. "Technically, on the next day, the visa isn't valid."

She explains that the former employer has a responsibility to report the termination to the INS and withdraw the visa. "In effect, if an employee terminates and the INS receives the employer's notification before another employer starts a new petition, any petition the second employer files is invalid," says Dodd-Major.

To get around this, a company trying to hire a currently employed H1-B visa holder should process a new petition and get approval while the alien is still employed with the first company. "When the new petition is approved, the alien can leave company A to work for company B without the visa status being an issue," says Dodd-Major.

In Maney's experience, however, "foreign nationals don't 'jump ship' easily." He explains that changing employment "creates a disruption of their visa status and can often subject the employee to additional risks associated with the immigration process."

Employers that do successfully recruit existing Hi-B visa holders typically emphasize their willingness to complete the visa process on an expedited basis, offer a superior management team, offer more rewarding work or offer substantially more money, says Maney.

Beyond H1-B Visas

So, you missed the H1-B cutoff, and you can't find any current H1-B aliens. What do you do now? Actually, there are many options. Companies facing a shortage of workers can get locked into thinking that the H1-B visa for IT workers is their only option for international employees. However, Alan Gordon, a board-certified immigration specialist based in Charlotte, N.C., who limits his practice to immigration law, believes that HR should make it a rule to be creative.

"Certain candidates might qualify for something other than an H1-B visa," says Gordon. "Run them through the gamut of categories they might fit." Gordon points out that people who have won prizes in their field of endeavor, businesspeople who have been knighted, patent-holders and the like may qualify for employment under the O-1 visa.