ALP: What is the H-1B “Cap” and how does it affect foreign nationals who are educated at U.S. universities?

May 2007

After graduation, a foreign student is faced with a tough choice:  return to his or her home country where he or she may or may not be able to find a job in the chosen profession, or attempt to remain in the U.S. where, in most cases, jobs are more plentiful.  Many students prefer to remain in the U.S. so they can put to practical use the skills and training they just received from our universities.  However, in order to do so, the student must change his or her status to a visa category that enables him or her to work in this country.  For individuals with a bachelor’s degree or higher, the H-1B visa classification is the most logical choice.

In order to be employed in the United States in H-1B nonimmigrant classification, the foreign national must be employed in a “specialty occupation.” A specialty occupation is one for which a bachelor’s degree in the particular field or its equivalent is a condition of entry into that profession.  For example, in order to work as an engineer, the person must, at a minimum, have a bachelor’s degree in engineering.  In addition, the duties to be performed must rise to the level where the knowledge acquired through a bachelor’s degree program would ordinarily be required to accomplish the list of tasks.  For example,  physical therapists and physician’s assistants meet both prongs of the H-1B definition.  Employment in these professional positions requires at least a bachelor’s degree in the specific field and entails the application of a body of highly specialized knowledge in carrying out the duties of the profession.  Considering these requirements the H-1B visa category is commonly used by the thousands of bright, educated foreign students emerging from our universities.  

Unfortunately for most foreign students and others seeking this classification, the H-1B “cap” has hit hard and early for the past two years.  Congress has limited—or capped—the number of H-1B visas available to all foreign nationals at 65,000.  20,000 exemptions to the H-1B cap are allotted solely to foreign students who have received a U.S. master’s degree or higher academic credential.  For the 2008 fiscal year, which begins on October 1, 2007, the 65,000 cap was reached within the first two days during which applications could be filed.  The 20,000 master’s degree exemptions lasted less than one calendar month.  Many students and their hopeful employers are now left to wonder how and if they can remain in the U.S. past the expiration of their student visas or their student employment cards.

Beyond the H-1B, there are few options for these students.  One such option is TN classification.  TN classification is available to workers from Canada or Mexico who are in various enumerated professional positions such as dentists, dietitians, medical technologists, nutritionists, occupational therapists, pharmacists, physicians (teaching and research only), physical therapists, psychologists, recreational therapists and registered nurses.  TN status is a good option for those who qualify, because it is relatively easy to obtain, it is renewable annually, and there is no limit on the amount of time a person can remain in this country in TN status.  However, TN status is only available to a foreign-born worker who maintains “nonimmigrant intent,” which means that the worker is entering this country temporarily and does not intend to pursue obtaining permanent residence at any time.  Permanent residence is often of principal importance to foreign workers, as they want to be able to remain in the U.S. to grow the careers they begin after graduation.  Thus, TN classification is often not a good long-term solution.

Other nonimmigrant categories that may be considered are H-3 and O.  The H-3 visa category is used by U.S. companies and institutions to bring foreign employees to the U.S. for a temporary period in order to participate in an established company training program.  Under USCIS rules, an outer limit of two years is placed on the training program’s length.  An extension of stay up to the two-year limit can be granted, if the employer originally requested less than the full two years.   This category is ideal for a recent graduate as it presupposes that additional training of the foreign national is needed for full employment in the corporation.

In the O-1 nonimmigrant visa category, aliens of extraordinary ability in the sciences, arts, education, business and athletics, as demonstrated by “sustained national or international acclaim,” may be admitted into the United States to work for a specific employer. The law establishes three different standards for the O-1 alien. The most exacting standard applies to aliens in the sciences, education, business and athletics.  Regulations specifically state that only a person who is one of the small percentage who has risen to the very top of his or her field of endeavor qualifies for “O” classification based upon “extraordinary ability” in those fields.  A lesser standard applies to those aliens in the field of arts, where “extraordinary ability” means distinction, a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field or arts.  Id.

An intermediate standard applies to aliens of extraordinary achievement in the motion picture or television industries.  “Extraordinary achievement” means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable or leading in the motion picture or television field.  Id.  In any of the categories, a qualified alien may only be authorized to come to the United States to perform services related to an event or events, if petitioned for by an employer in the U.S.  This particular category is typically not used for recent graduates, as it is designed for use by only those foreign nationals who have risen to the tops of their chosen fields.  However, when the H-1B cap is in place, this option should be explored for highly skilled professionals.

Before the H-1B cap was reached on day two of the filing window for the 2008 fiscal year, USCIS received more than 123,000 H-1B petitions.  Students and other foreign nationals who were “capped out” of the H-1B visa classification and who do not qualify for the other categories discussed above are left to hope Congress will pass some sort of comprehensive immigration reform prior to the expiration of their current nonimmigrant statuses in the U.S.  Most, if not all, of the recent bills introduced in both houses of Congress incorporate an increase in H-1B visas as part of the bill, along with an overall increase in the number of visas available to those hoping to immigrate to the US on a permanent basis.  These reforms are necessary so that the more than 70,000 H-1B applicants that will be capped out this year continue to have the option of utilizing their talents in the U.S.

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