It is evident the demand for H-1Bs is consistently higher than the availability — even in a down economy over the past few years. We continue to hit the cap many months before the next round of visas are available on the government’s fiscal year (October 1st/September 30th). The cap problem needs to be remedied by Congressional action to increase the visa allotment from 65,000 currently to something much higher. Anecdotal evidence indicates that allowing foreign nationals on H-1Bs will not hurt US jobs as particular industries (e.g., medical, IT) struggle to fill positions. In addition, allowing foreign nationals to be employed in the US with H-1Bs will help the US economy to grow, including the creation of more US jobs. We are losing talented and highly educated individuals due to the H-1B cap restraint coupled with the long line for employment-based green cards. Even the conservative Heritage Foundation agrees with increasing the cap to assist the US economy. Mayor Bloomberg was right. It is economic suicide to continue to cling to the myth that all foreign labor is bad and to continue to restrict or eliminate it in a down economy. We live in an interdependent economic system in the 21st century, but our rules to move labor across the borders are still based on premises and protections set up 20 years ago or even earlier. Will we learn from this recent frenzy to scramble for H-1Bs? I sure hope so as I’m tired of telling my clients to “hurry up and file”.

The numbers for the regular cap moved from 49,200 2 weeks earlier – so moving at about 3,500 per week. USCIS will soon notify us when the 20,000 cap will be exhausted and then those applying in the advanced degree category will default to the regular cap. I predict the H-1Bs to hit the main cap in the next few weeks given the current rate, the fact the rate always increases at the end, and the advanced degree cap being hit probably this week.

The Obama Administration supports an increase to the cap but tempers it with the caveat that “it needs reform” first, given that 1 out of 5 H-1B petitions were fraudulent according to USCIS. Much has been done over the past year to prevent fraud, such as USCIS worksite investigations and the agency’s use of VIBE to check on the veracity of US and Colorado employers who file an H-1B petition.

Nevertheless, the H-1B cap has not been increased since 2004, when the 20,000 advanced degree allotment was created, and there is no political advantage for promoting foreign worker opportunities over US workers, despite the argument launched by NYC Mayor Bloomberg that losing degreed foreign workers is “national suicide” as they fill critical holes (e.g. IT, health jobs) in our workforce and can help US companies to grow and create employment.

If you have not filed an H-1B Petition you had better get it in as quickly as you can; otherwise your potential worker cannot file until the FY2012-13 visas become available on October 1, 2011. The earliest you can file for an October 1^st start date is then April 1, 2011.

A K-1 fiance visa is a temporary visa that requires a US citizen to sponsor a foreign national person so that the couple can marry in the US. Only US citizens are eligible to sponsor, but anyone can benefit from this type of visa.

The legal requirements are that the couple is eligible to marry (meaning no divorces pending or marriages valid with other persons), the couple has intent to marry (must marry within 90 days of entry), and the couple has personally met within 2 years of filing a petition. In addition, background checks will be conducted on both the US citizen sponsor and the foreign national. Serious criminal offenses by the US citizen may require a waiver to proceed.

The process is a two-step procedure. First, a petition is filed by the US citizen in the United States with US Citizenship and Immigration Services. Current processing times for the petition (form I-129F) can be found on USCIS’ website, but typically between 3-6 months is fairly standard. Second, the foreign national must obtain a visa in his or her home country which includes an interview and other screens such as a medical exam and proof the person will have financial support once living in the US.

An advantage to a K-1 fiance visa is that you do not need to be and should no be legally married to be eligible to file. This may be helpful for couples who live very far apart and cannot physically meet to get married abroad and may move the process of getting your loved one here faster.

Some disadvantages of a fiance visa is that the relationship is more subject to scrutiny because in fact the couple must prove intent to be together – a futuristic prospect, as opposed to those who are already married. Also, once in the US, the foreign national must still become a permanent resident, which can be time consuming and costly. If credibility and/or finances is an issue, you may want to consider doing the regular permanent resident process after you marry the foreign national first.

Legal advice and consul may be advantageous to assist couples with determining the appropriate legal option, obtaining the appropriate evidence, forms and fees and ensuring the process is done correctly the first time around.

Why do we care? We care because once the cap is “hit” there will be no more H-1B visas handed out for the rest of the fiscal year, regardless of how great a foreign professional worker you have or how needy the employer. The cap is the cap, is the cap – no exceptions. Right now the cap is nearing 65,000 (at 57,000 plus) and many are predicting the cap to be reached by the end of this month, which is realistic.

In general terms, a new H-1B worker who wants to file an initial H-1B or is moving from a cap exempt organization to a cap organization will NOT be eligible to work in H-1B status until earliest October 1, 2011. (The government fiscal year is Oct 1 to September 30th.)

Since the Great Recession, the time it has taken to reach the H-1B cap has been much longer than in previous years, which for instance in FY2007-2008, was in a few days. And therefore, not much political pressure to increase the cap. However, certain sectors of the economy are always in need of foreign workers, such as healthcare, and our country has “hit” the cap every single year since the cap limit was reduced from 195,000 to 65,000 after FY2003. As the economy hopefully picks up steam in 2011, it will be interesting to see what kind of pressure it will put on Congress to address the cap limit, which only Congress can change.

However, the terms “Congress” and “change” do not really go well together anymore. And the unlikely politico-economic climate to increase foreign labor opportunities as many US citizens still suffer from lack of employment, is a political no-go for many Congress persons – Democrats and Republicans.

Stay tuned in to some other non-immigrant visa categories that may fit your professional workers and tuned in to some workers who are already considered “cap exempt,” in order to deal with this reality.

The form, however, imposes on US employers and businesses employing those in H-1B, H-1B- Singapore/Chile, L-1A or L-1B, or O-1 an additional certification requirement pertaining to US export control law.

Under export law, US employers in general cannot release certain types of technology and software to foreign nations, and this includes releasing this information to foreign persons – deemed to be an export – without an export license.

Unfortunately export law is spilling into immigration requirements with this new export certification requirement on the I-129. The US employer must now certify under penalty of perjury that it has reviewed the Export Administrative Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and determine that an export license is not required or that a license is required and the company certifies it will not release the technology information to the foreign person until a license is obtained.

While many technologies will not be covered, the requirement does put the US employer on task to at least review the types of technology that would require licensure. And, if possibly subjected to a license requirement, it puts the the US company on task to review or establish an export control comprehensive procedure and to engage an export control specialist to assist.

For further information about this new requirement,  and what to do, feel free to contact our office.