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Talented Specialty Workers with a Bachelor Degree (H-1B)

Today is November first 2004 and my office received a call from Luxar Studios. “We found this great animation talent, Denise R. Denise just graduated from the University in Tucson and we, Luxar Studios in Phoenix, would like to hire her, because we’re very impressed. Her work is extremely original, the school even sent some of her designs to the top three animation studios to promote her and she was awarded special honors for a project she recently did.”

Well, that’s just great. However, there is one problem, Denise is not a US citizen. She’s Dutch. Why is that a problem, the HR manager of Luxar asks. She is talented; there is a job for her; she would greatly contribute to our society and economy. There’s a definite need for her skills.

The problem is this. Foreign Nationals need to have a valid status in the United States that allows them to work here. The category that would be applicable is the so-called H-1B category. This visa category applies to Foreign Nationals coming temporarily to perform services in a specialty occupation which requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education.

However, current law limits the number of foreign workers who may be issued a visa to 65,000 and the quota for the fiscal year ending on September 30, 2005 has already been reached. The quota was reached on the same day it became available ( October 1, 2004 ). Therefore, an employee cannot work in H-1B status until October 1, 2005 and the filing of a petition cannot occur before April 1, 2005

In other words, although Denise qualifies for the visa, she can’t get an H-1B until October 2005. Worse, Luxar Studios should probably file as soon as possible after April 1, 2005 . Otherwise the quota might have already been reached for the next year.

If Denise is in the US on a valid student visa (F-1) the school could help her to get her a one-year Optional Practical Training (OPT). With OPT she would receive an Employment Authorization Document (EAD) allowing her to work with Luxar Studios for one year. Luxar could then on April 1, 2005 sponsor her for an H-1B and on October 1, 2005 she could change her status from F-1 student to H-1B specialty worker.

That’s a great plan, says the HR manager. Let’s do it. Is it expensive?

The required filing fee for the H-1B , as of April 1, 2004 , is $185.00. Premium processing is available, upon payment of a fee for an amount of $1,000.00. This premium processing allows the petitioner to get an answer from the U.S. Citizenship and Immigration Services (USCIS), formerly known as INS, within 15 days.

If the University is willing to help out, this option will work. Keep in mind that every case is unique and that every case deserves a separate analysis. This example is merely to show the complexity of hiring a foreign worker in a specialty position and to illustrate the difficulties employers and employees alike face these days when entering the job market.

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Other Immigration Topics:
  Being transferred to the United States, Intracompany Transferees (L-1's)  
  Free Advice or Nightmare  
  Getting a Social Security Number  
  Immigrant Intent  
  Labor Certification and PERM  
  Secure America and Orderly Immigration Act of 2005  
  Talented Specialty Workers with a Bachelor Degree (H-1B)  
  To invest is a long short-term affair (E-2)  
  USCIS Immigration Benefit Application Fees  
  You want to work in the US, but how? Here are some answers...  

We hope you find this information helpful. If you have any immigration questions, please contact David Asser, either by phone at (602) 228 9773 or e-mail at david@asserlaw.com. You can also visit the website at www.asserlaw.com


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