--Posted 11/10/04-

Q- I am an L-1 visa holder having been transferred with my family by my employer in the UK to the USA just over one year ago.

My employer has told me that they are terminating my offers in the USA. What is the status of my L1 visa should I accept any other job offers? Do my family and I have to leave the country if I don't obtain or take up another job with another employer within a certain period of time?

A- In order to take a job with another employer, you would need to qualify for and switch to an H-1B. An issue is that it is likely that the quota for H-1Bs is filled and new ones are not available for you until 2005. You would not be able to start working until October 1, 2005.

Either you need new employment within 30 days of termination, or would need to depart the US with your family.

An alternative would be to file for a change of status to B-2 visitor to wind up your affairs. This should be done before your termination date. You would need to file form I-539 to do this.

Q-What are the requirements for a Management Consultant TN?

A- You need to be a Canadian citizen and have either a related degree or 5 years experience. The definition in the Inspector's Field Manual of a Management Consultant is as follows: A management consultant provides

services which are directed toward improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity's goals, objectives, policies, strategies, administration, organization, and operation. Manageemtn Consultants are usually independent contractors or employees of consulting firms under contracts to U.S. entities. As a salaried employee of such a U.S. entity, they can fill supernumerary temporary positions. Canadian citizens may qualify for this position by holding a baccalaureate degree, by having five years of experience in the field of management consulting, or by having five years of experience in a field of specialty related to the consultant agreement.

Q-My husband recently applied for his H-1B visa. We were told about the cap. I'm just wondering, what happens to the visas that aren't used ecause the job falls through (death, someone changes their mind, etc.) Is there a waiting list?

A- There are limited situations in which an H-1B number can be returned to the "pot" of available numbers. They are as follows:

1. If someone is granted an H-1B and USCIS later revokes it because it discovers the application was fraudulent, an H-1B number will be returned to the pot of available n8umbers for the fiscal year during which it was revoked, regardless of when the H-1B was initially issued.
2. If an H-1B petition was approved for the present fiscal year (FY 2005) and the approval was counted against the FY2005 cap, and the H-1B petition subsequently is revoked during FY2005 for any reason other than fraud or willful misrepresentation (e.g. the petitioner goes out of business, the person dies, etc.(, then that number will be restored to the total number of H-1B petition approvals available for the remained of FY2005. If the same H-1B petition is revoked for any reason other than fraud or willful misrepresentation after FY2005, CIS will not restore the number to the FY2005 cap.

In reality, while these are the policies articulated by USCIS, I have never seen a situation where USCIS actually opened up a handful of extra H-1B numbers after they had announced that the cap had been reached for the fiscal year. I assume that they don't do this because they would receive a flood of applications and would only be able to adjudicate 5, 10, or 20 of them. USCIS generally announces the number of cases that are "in the pipeline" ready for adjudication. Then when they announce that the cap has been reached they adjudicate all cases in the pipeline, even if their count of approvable cases has not been exact. They may figure that the possibility of H-1B numbers being returned to the pot because of revocations or withdrawals of previously granted H-1B petitions gives them some room for error in counting the number of cases in the pipeline.

The bottom line is that, once they announce the cap has been reached, USCIS will not accept any more filings unless (1) the employer for which the H-1B applicant will work is cap-exempt, or (2) it is past April 1st and they don't ask for a start date prior to the start of the next fiscal year.

Q- I am not sure if I understand the new rules for Labor Certifications. Does that mean I should wait until January 1st to start the process? Will it be faster or make a difference to new applications?

A- Although the process can be started now (in RIR there are several months of work before it can be filed), we are waiting on filing with our current clients until the new rules go into effect in most cases. At this point we do not know whether it will make any difference unless PERM goes into effect. If PERM is effective, it will make a great difference.

Q- I'm a schoolteacher currently on a J-1 visa, which expires on June 30, 2005. I would like to continue to stay and teach in the USA and would therefore need to change to an H-1 visa. How do I go about doing this?

A- The H-1B cap has been reached for this fiscal year, so you would not be able to start working for the new H-B employer until October 1, 2005. Your H-1B employer would have to request an October 1 start date for your H-1B employment on the petition. (Note, some employers are not subject to the cap. If this is the case with your employer, your H-1B employment can start on any date).

Because your J-1 status is due to expire in June 2005, there would be a gap of 3+ months between the expiration of your J status and the date on which you would be able to start working for a cap-subject H-1B employer. Because of this gap, there is no way that a change of status from J-1 to H-1B could be approved on your behalf. (Note this is not true if your employer is not subject to the cap.)

There is one exception to the rule that a change of status cannot be approved when there is a gap between expiration of the J-1 and the H-1B start date. However, this exception applies only to J-1 students. I understood from your question that you are not a student. However, if you are, USCIS is allowing J-1 students whose status expires prior to their October 1 H-1B start date to lawfully remain in the United States. The student status grace period is extended for these individuals, meaning that they are permitted to be legally present in the United States but are not permitted to work until their October 1 H-1B start date. People who take advantage of this option must have an October 1 start date with the H-1B employer (and no later).

If you are not a J-1 student, then in order for you to start working for an H-1B employer with an October 1, 2005 start date, your cap-subject employer would need to file an H-1B petition on your behalf with 10/1/05 start date. This petition could be filed as early as April 1, 2005. Then, you would need to leave the U.S. upon expiration of your J-1 status. After the H-1B is approved and within 10 days of your start date on the H-1B, you could apply for an H-1B visa at a U.S. Consulate abroad. Once it is approved, you can enter the U.S. on your new H-1B and take up employment. (This assumes you are not a citizen of Canada; if you are you would not need a visa; you would simply need to leave the U.S. and re-enter on the H-1B approval notice on October 1st.)