Some Thoughts on H-1Bs

By: Beth Robertie, Associate Since the H-1B cap for fiscal year 2006 was hit so early this year, there has been a lot of discussion about gaining access to the additional 20,000 H-1Bs for graduates of U.S. graduate and professional schools (“masters” H-1Bs) and cap-exempt H-1Bs. Although the numbers for the 20,000 “masters” H-1Bs are beginning to dwindle as well, the cap exempt H-1Bs are not numerically limited. As you all know, cap-exempt H-1Bs are reserved for those employed by institutions of higher education and non-profit organizations affiliated with or related to institutions of higher education. While these two groups appear to be simple and well-defined, there are some situations that beneficiaries who hope to attain one of these H-1Bs should keep in mind. · Graduates of private, FOR-PROFIT institutions of higher education may not be eligible for the 20,000 “masters” H-1Bs. Additionally, employees of these institutions may not be eligible for cap-exempt H-1Bs. This is because, to qualify under the law, an institution must be “public” or “non-profit.” While most institutions of higher education in the United States are either public or non-profit, schools such as DeVry University and the University of Phoenix are proprietary, for-profit schools and thus may not qualify. Therefore, as the law is written, graduates of these for-profit schools are not technically eligible for the 20,000 “masters” H-1Bs. Please note that, in our experience, the USCIS has not denied an H-1B petition on this basis. However, that does not mean that they will not begin to deny these petitions at any time, especially as those 20,000 H-1Bs begin to become more popular and the cap is exhausted. Future H-1B hopefuls should keep this point in mind when choosing a higher education institution. · According to a strict reading of the law, however, a foreign national who earns his masters degree abroad at a university that has “a campus or other instructional site” in a state might qualify for one of the 20,000 “masters” H-1Bs. For example, the University of Maryland has campuses all over the world. A student earning his Master of Science degree at the University of Maryland abroad should qualify for one of the 20,000 H-1Bs. However, the same is not true for a student studying at the American University of Cairo , assuming that the American University of Cairo has no instructional site in any state. · Also according to a strict reading of the law, someone who has studied and obtained a graduate degree at a U.S. institution of higher education on-line should qualify for one of the 20,000 H-1Bs, so long as the institution has an instructional site in a state and otherwise qualifies. · As we have discussed, to qualify for one of the 20,000 H-1Bs, the beneficiary must be a graduate of a U.S. institution of higher education. However, there is no requirement that the master’s degree be related to the position in question. As long as either the bachelor’s degree or the master’s degree is related to the position, the beneficiary should qualify for one of the 20,000 H-1Bs. However, if the position requires a specific master’s degree, then the beneficiary must hold that kind of degree. · A beneficiary who holds a cap-exempt H-1B and plans on continuing that employment may also file for another H-1B which would otherwise be subject to a cap despite that cap for part-time employment. As long as the H-1B holder does not cease to be employed by the cap-exempt entity, he should be able to acquire another H-1B for concurrent employment. For example, if Dave is an H-1B holder who is a professor at a public institution, he may also be eligible to apply for a part-time H-1B to work for a book publisher as long as he does not cease his employment with the university. Despite the fact that the H-1B for the book publisher would usually be subject to the cap, Dave should be able to acquire the additional part-time H-1B in this case. Please keep in mind that because the USCIS has not expressly clarified some of the ambiguous language in the H-1B laws, all of these points are mere speculation based on a plain reading of the text. Nothing is guaranteed, however, and it is always best to consult with an experienced attorney when in doubt. ______________________________________________________________________________ 本文由范毅禹律师事务所提供 本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢迎读者流览查询。 www.Fan-Law.com CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]