How to Avoid the H-1B Cap Trap

Date: Friday, May 04, 2007 10:10 AM

<<<<< JOB DESTRUCTION NEWSLETTER No. 1686 -- 5/04/2007 >>>>>

Newspapers are filled with stories about the national crisis that is going
to occur because all of the H-1B visas have been used for 2007. Read the
previous newsletter for a few examples.

According to the scaremongers we are about to face an apocalypse of immense
proportions as high-tech companies will either be forced out of business or
they will have to move offshore -- all because they no longer have access
to the best and brightest geniuses from countries like India and China.

So does that mean for the rest of 2007 the flood of foreign workers that
take jobs from Americans is going to slow to a dribble? Does it mean your
job is safe for awhile, or perhaps it means that you might be able to leave
your job at Walmart to get a high-paying computer programming job like you
once had?

Not according to immigration attorney Shusterman. Shusterman explains that
there are "lots of ways to remain and work in the U.S." -- especially for
those who are willing to hire expensive immigration attorneys that can sort
out the alphabet soup of visas and their ample loopholes.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.ilw.com/articles/2007,0507-shusterman.shtm

How to Avoid the H-1B Cap Trap
by Carl Shusterman
With the 65,000 H-1B cap reached at the beginning of April, and 20,000 H-1B
cap for those with advance degrees from U.S. universities about to be
reached, are their any alternatives for those caught in the "cap trap"?

Yes, there are a lot of ways to remain and work in the U.S. for those who
take the time to examine the possibilities:

A. Are you exempt from the H-1B caps?

The answer is yes if you work "for" or "at" (1) an institution of higher
education or a related or affiliated non-profit entity; (2) a non-profit
research organization; or (3) a government research organization.

Persons who are extending their H-1B status, changing employers or
recapturing any H-1B time spent outside the U.S. are also exempt from the
numerical caps. So are physicians with J waivers. While some H-1B workers
are subject to the law's six-year maximum duration, persons who had/have a
labor certification, a PERM application or an immigrant visa petition which
was pending in excess of one year may extend their H-1B status beyond the
general six year limit. The same is true of persons who cannot adjust their
status solely due to per-country quotas.

B. What is your country of citizenship?

If you are a citizen of Canada or Mexico, think "Trade NAFTA" or "TN". If
you engage in any of the 63 listed occupations, you may be eligible to work
in the U.S. in TN status, and there is no cap on TNs!

If you are a citizen of Chile or Singapore, the U.S. has Free Trade
Agreements with both of these countries, and there are plenty of H-1B1
visas remaining.

Finally, if you are an Australian citizen, think E-3, the Aussie equivalent
of an H-1B.

C. Are you eligible for another type of temporary work visa?

Some potential H-1B's may also be eligible for other types of temporary
visas including E-1, E-2, J-1, L-1A, L-1B, O-1 or even R or Q status. You
may also be eligible for a "B-1 in lieu of H-1B visa".

D. Can you qualify for an EAD?

Consider the fact that the employment-based first-preference (EB-1)
category is "current". So is the EB-2 category (unless you were born in
India or mainland China).

EB-1s are exempt from the PERM and labor certification requirements. If you
are eligible under EB-1, submit your I-140, I-485 and I-765 simultaneously.
You will obtain a work permit (EAD) within 90 days.

Some EB-2s are also exempt from PERM or labor certification. This is true
if you are qualified for a National Interest Waiver. To see if you are
eligible for EB-1 or EB-2.

E. You may also be able to adjust your status based on a bona fide marriage
to a U.S. citizen, an approved EB-5 investor petition or if you are one of
the 50,000 winners of the diversity visa lottery program.

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