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Shortage of visas for professional foreign nationals expected

Arizona employers who failed to file H-1B visa applications by April 1 may be out of luck if they are seeking to hire foreign nationals in a professional or specialty occupation for fiscal year 2009.
Last year at this time, the entire 65,000 national allotment of H-1B visas evaporated within 24 hours, leaving 85,000 petitions returned to unhappy employers.
The shortage of H-1B visas poses serious challenges for Arizona employers. Recently, the plight of the high-tech industry has been getting the most attention. U.S. Rep. Gabrielle Giffords, D-Ariz., has taken a particular interest in this problem, pointing out that high-tech companies in Arizona added 800 jobs last year, for a total of 111,600 jobs statewide.
Obtaining H-1B work authorization requires employers to plan ahead or they might find themselves standing when the music stops. Petitioners can file H-1B petitions up to six months ahead of the employment start date. Last year, on April 2, the United States Citizenship and Immigration Service (USCIS) received H-1B petitions totaling nearly twice the 65,000 cap. In order to fairly distribute the H-1Bs, USCIS held a lottery, and 65,000 petitions were randomly selected for processing.
To obtain H-1B work authorization, U.S. employers must file a petition with USCIS that demonstrates that the proposed employee and the position are of a professional nature. If approved, the petition is valid for up to three years, and can be extended for an additional three (the total period of the H-1B time cannot exceed six years). At the end of the six-year period, the employee must leave the U.S., unless he or she has qualified for permanent resident status or another work-authorization category.
In March of this year, USCIS announced that all petitions filed within the first five business days of April will be included in the random-selection process if USCIS receives a sufficient number of petitions to reach the cap within those first five days.
There are a fortunate few who are exempt from the 65,000 cap, including employees of institutions of higher education or nonprofit/governmental research organizations, as well as up to 20,000 who have earned an advanced degree from a U.S. university. The cap does not apply to employees seeking an extension or a change of employer.
Rep. Giffords introduced legislation last month that would double the cap. The Innovation Employment Act would increase the cap in H-1B visas from 65,000 a year to 130,000 a year starting this year. In addition, there would be no cap on H-1B visas issued to applicants with advanced degrees from U.S. universities. Additionally, up to 20,000 foreign workers with non-U.S. advanced degrees would be awarded H-1B visas. Another provision of this bill would increase the H-1B cap to 180,000 in 2010 until 2015 if the 130,000 cap is reached in the previous fiscal year.
House Judiciary Committee ranking member Lamar Smith, R-Texas, also introduced legislation in March called the Strengthening United States Technology And Innovation Now (or Sustain) Act, which would raise the visa cap to 195,000 in 2008 and 2009.
The lack of H-1B visas has sent employers scrambling to find other ways to fill their professional positions. There are several other visa categories for which a foreign professional might be eligible. For example, under NAFTA there is a category which allows skilled Canadian and Mexican workers to be employed in a wide range of occupations, if they have a college degree from their respective countries.
There’s also the L-1 visa, which is for employees of international companies who have worked for the foreign company for at least one year and are being transferred to a related U.S. entity. Employees can only be transferred to fill managerial or executive position or they must possess specialized knowledge about the company's operations. Another alternative is the O-1 visa available to foreign nationals who are extraordinary in the fields of science, arts, education, business, athletics, or motion picture and television.
The dust hasn’t settled on this year’s H1-B applications, but if last year’s trend holds true, they are already gone for fiscal year 2009. It is time to consider options for alternative work-authorization categories.
Matthew Martinez practices law with Fennemore Craig and has experience in the areas of immigration and naturalization.

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