The H-1B visa program allows American businesses to petition for employees from abroad to come to the U.S. temporarily to work in a “specialty occupation.” Demand for these speciality immigrant workers far exceeds the supply of visas, the number of which are capped annually by federal law. Waiting periods can be exceedingly long, and the process can be both time-consuming and expensive. Some businesses have chosen to explore other options. The O-1 visa may be a viable alternative to the H-1B for a few employers, although its criteria for “extraordinary ability” are much more stringent. Some employers are going in the other direction, using B-1 visas for employees, although the law bars B-1 visa holders from full-time employment. One company recently settled allegations by the federal government of visa fraud for $34 million.
Federal law caps the total number of H-1B visas the government may issue annually at 65,000. U.S. Citizenship and Immigration Services (USCIS) announces a date on which it will begin accepting petitions for the upcoming fiscal year. The length of time it takes for the number of petitions received to exceed the annual cap has decreased over the years to a matter of days. As a result, many companies must wait to petition again, while the prospective employee waits in their home country. Congress occasionally mulls over possible reforms to the H-1B program, but some employers are already trying different types of visas.
An employer seeking a visa for a particularly accomplished individual might consider the O-1 visa for people of “extraordinary ability or achievement.” Although such criteria may be challenging to prove, this type of visa is not subject to a numerical cap. The O-1A visa is available to people with ability or achievement in athletics, business, education, or science, while the O-1B visa applies to people in the arts, film, or television. A petitioner must be able to show that the prospective visa holder has, in USCIS’s words, “risen to the very top of the field of endeavor.” Evidence may include awards indicating national or international recognition, membership in organizations restricted to the elite of a given field, or highly significant and original contributions to their field. An individual with an O-1 visa may stay in the U.S. for up to three years, renewable in one-year increments.
The B-1 visa allows people to come to the U.S. temporarily for business or recreational purposes. It does not authorize actual employment, however, and is not an alternative to the H-1B. The federal government and the India-based tech company Infosys Corp. recently settled a claim alleging that the company employed B-1 visa holders to the exclusion of American workers and H-1B holders. A lawsuit brought by an employee in 2011 claimed that the company used B-1 visas to circumvent the H-1B petition process and the requirement to pay H-1B workers fair wages. A government investigation followed, culminating in the company’s agreement to pay $34 million.
Immigration attorney Samuel C. Berger helps obtain visas for immigrants and prospective immigrants who want to move to the New York and New Jersey areas, or who have this area their home. Applications for immigrant visas and other benefits require careful planning and knowledge of the complex federal immigration laws. To schedule a confidential consultation, contact us today online or at (212) 380-8117.
More Blog Posts:
H-1B Visa Cap for Fiscal Year 2014 Reached in Just Five Days, USCIS to Hold Lottery, New York & New Jersey Immigration Lawyer Blog, April 6, 2013
Immigration Authorities Have Allegedly Undercounted H-1B Visas Since 2008, New York & New Jersey Immigration Lawyer Blog, December 20, 2012
Almost Half of the Applications for H1-B Visas are from Computer Companies; New York Leads the Demand for Skilled Immigrants, New York & New Jersey Immigration Lawyer Blog, July 19, 2012
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