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H-1B Temporary Work Visas Still Available.

The main visa which allows people to stay and work in the U.S. is the H-1B visa for temporary professional workers. It normally requires the equivalent of a U.S. bachelor’s degree. You are correct in that you need a sponsor, but not any sponsor will do. Assuming you have a relevant degree, you need to get out there and quickly find an employer who will sponsor you for professional work. Time is of the essence, as there is a limited number of H-1Bs and the window for applying is unbelievably still open. As of press time, the U.S. Citizenship & Immigration Services (CIS) latest announcement on May 4th indicated that of the 65,000 visas released on April 1st for work start dates October 1st, only 42,000 had been used. Given the state of the economy, it just goes to show that employers only use the H-1B visas when they need workers. In 2003 the visas were opened up in October and were gone by February 2004. In 2004, the H-1Bs were released in April and gone by the end of September. Congress then decided to come to the partial rescue and added another 20,000 H-1B numbers for those with U.S. master’s degrees or higher would be eligible for the new H-1Bs which could be issued prior to October 1, 2005. In 2006, 2007, and 2008, when the economy was still booming, the visas were gone in two months, two days, and one week, respectively, and a lottery was held in 2007 and 2008 to pick the winners (the odds of winning were worse in 2008). So it looks like a good time to get rid of the arbitrary 65,000 cap which was imposed back in 2003 by a fearful Congress and let the market decide how many H-1B visas US employers really need.

As part of the deal to increase the numbers, additional fees were also added which skyrocketed the fees from the base fee of $185 to $2,185 just to file the petition. With expedited (15 day) processing the total increases to $3,185. The base fee has since gone up to $325, the anti-fraud fee is still $500, an additional fee that most employers must pay which is either $750 for employers with less than 25 employees or $1,500 for employers with more than 25 employees, an expedite fee is $1,000, and that doesn’t even take into account the fees the employer or you will have to pay an attorney to prepare the paperwork! These visas are not cheap but they are good for three years and can be extended for another three years (after refilling a new petition and paying the $320 and $750-1,500 fees). After six years of working in the U.S., the person must return home for one year prior to obtaining a new H-1B (note that there are a few exceptions to the six year limit), assuming numbers are available.

The H-1B visa is designed for professional workers coming to do professional work and it does not involve any advertising or other testing of the U.S. market for similar employees. For instance, a computer engineer with a degree in computer science who is coming to work as a systems analyst would be the classic example of an H-1B. However many H-1Bs are also used by teachers, accountants, management analysts, designers, writers, engineers, hotel managers, and many other “professional” positions.

When the petition is approved, the U.S. Embassy in the person’s country of residence issues the actual work visa. If the person is in the U.S. in another status such as a J-1 summer exchange visitor or F-1 student, oftentimes a change of status can be done which delays the embassy trip until the first time the person being sponsored departs the U.S. Note that a visa waiver (90 day visitor) cannot extend or change their status and must pick up the new visa at the embassy or consulate.

In 2005, Bill Gates, the founder of Microsoft made some comments on the H-1B program. When asked during his participation on a panel at the Library of Congress what he would do if he could make laws, Gates said “I’d certainly get rid of the H-1B cap.” He went on to comment, “The whole idea of the H-1B visa thing is, 'Don't let too many smart people come into the country.' The whole thing doesn't make sense," and he added, “If the demand is there, why have the regulation [caps] at all?”

Up until 2003 the annual number of H-1Bs was 195,000 and when I first became an attorney in the late 1980s there was no cap at all. What’s happening this year is a strong reason to get rid of the caps once and for all.