PF Cheng's Law Blog

Today is April 1st.  For most people April 1^st is just a day for mischief and harmless pranks; but for an immigration attorney, and the hundreds of thousands of foreigners interested in working full time in America, April 1^st is D-Day, the day when they let loose with their applications, hoping beyond hope that they will be one of the blessed few to be granted an H-1B temporary work permit.

To facilitate the employment of skilled foreign workers by US companies, every year the US government will issue 65,000 H-1B permits for use by foreign workers employed by US employers.  65,000 used to be more than enough, but that is no longer true, and for the last couple years the quota ran out as soon as it became available to the public (April 1^st), and this year it looks to be no exception even with the economic recession.

H-1B visa used to be issued out on a first come, first serve basis.  But due to the deluge of H-1B applications (160,000 in 2008), the United States Citizenship and Immigration Services (USCIS) was forced to run a lottery to decide who among the applicants will receive a coveted H-1B visa. As a result, many applicants, even those who applied on the very first day were unable to get an H-1B visa.

The moral of the story is that if you plan to apply for an H-1B, don’t apply as a regular applicant! Try to beat the H-1B quota by applying under one of the H-1B quota exemptions.  There is nothing your attorney can do about the quota; it is what the government says it is.  The same is true of the H-1B lottery; it is purely a game of chance (and if your attorney tells you otherwise you should report him to the Bar disciplinary Board).  So rather than subject yourself to the whims of the government or the luck of the draw, see to it that you qualify under one of the exemptions, which are unaffected by the 65,000 quota.

Ask yourself if you qualify for one of the following exemptions:

·         Do you have a Masters Degree from a US college or university? (Masters degree applicant has a higher quota of 85,000)

·         Do you work for a college or university?  (Exempt from quota)

·         Do you work for a non-profit or governmental research organization?  (Exempt from quota)

·         Do you work for a non-profit organization affiliated with a college or university? (Exempt from quota)

·         Even if your employer is not exempt from the quota (by being a college or university, non-profit or governmental research organization, or a non-profit organization affiliated with a college or university), do you “physically work” at one of the exempt institutions?

·         Are you a citizen of Singapore? (5,400 H-1B are set aside for nationals of Singapore)

·         Are you a citizen of Chile? (1,400 H-1B are set aside for nationals of Chile)

·         Are you a citizen of Australia? (Under current law, 10,500 E-3s, also known as “Australian H-1B”, are set aside each year for nationals of Australia)

If you fall under one of these exceptions, congratulations, you may be totally exempt, or at least be entitled to a higher quota than the regular applicant.  Some of these exemptions are complicated, and will require clever drafting and detail analysis of your situation.  Consult an immigration attorney if you seek a more definitive answer.  Good luck.