H-1B CAP REACHED, O And P CATEGORIES AS ALTERNATIVES 

By Roman P. Mosqueda, Esq. 

            U.S. Citizenship and Immigration Services (USCIS) announced on February 17, 2004, that the 65,000 H-1B cap for new workers has been reached.

            After February 17, 2004, the USCIS will not accept any new H-1B petition for first-time employment subject to the Fiscal Year 2004 (October 1, 2003 to September 30, 2004) annual cap.

            It will return all H-1B petitions with the filing fee for first-time employment subject to the annual cap received after the end of business on February 17, 2004.

            H-1B sponsoring petitioners may, however, re-submit their petitions when H-1B visas become available for the Fiscal Year 2005 (October 1, 2004 to September 30, 2005).

            The earliest date H-1B petitioners may file their petitions requesting Fiscal Year 2005 H-1B employment with employment start date of October 1, 2004, would be April 1, 2004. 

Current H-1B Workers Not Affected by Cap: 

            Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap, according to the USCIS announcement on February 17, 2004.

            Accordingly, USCIS will continue to process petitions filed to:

            1.            Extend the amount of time a current H-1B worker may remain in the United States;

            2.            Change the terms of employment for current H-1B workers;

            3.            Allow current H-1B workers to change employers; and

            4.            Allow current H-1B workers to work concurrently in a second H-1B position. 

            Indeed, current H-1B workers who have been counted within the past six years are not counted against the cap, unless the H-1B beneficiaries are being petitioned for a new full six years at the time the new petitions are filed.

            And approved H-1B petitions later revoked because of fraud or material representation are deducted from the numerical cap of 65,000, per Section 214(g)(3) of the Immigration and Nationality Act. 

Other H-1B Petitions Not Subject to Annual Cap: 

            In its announcement, USCIS also noted that certain petitions for new H-1B employment are not subject to the annual cap, and will continue to process the petitions, if the alien employment is at:

1.      an institution of higher education or a related or affiliated nonprofit entity;

2.   a nonprofit research organization; or

3.   a government research organization. 

            And pursuant to Public Laws 108-77 and 108-78, USCIS will also continue to process H-1B petitions for workers from Singapore and Chile. 

O-1 And O-1B Categories: 

            As an alternative to H-1B category, aliens who have extraordinary abilities in the sciences, arts, education, business or athletics, which have been demonstrated by sustained national or international acclaim, may be eligible for O-1A status, under Section 101(a)(15)(O) of the Immigration and Nationality Act.

            With regards to motion picture and television productions, aliens who have demonstrated record of extraordinary achievement, and whose achievements have been recognized in the field through extensive documentation, may be eligible for O-1B status, under the same section of the Act.

            O-2 status covers persons accompanying and assisting an O-1 artist or athlete in the performance for a specific event or events. And O-3 status covers spouse and children accompanying or following to join the O-1 artist or athlete.

            O petitions are filed on Form I-129 ($130.00 filing fee) plus $1,000.00 premium processing fee, if processing within fifteen (15) days is applied for, with the Regional Service Center having jurisdiction over the place of work or performance.

            The alien cannot file self-petition; the O petition should be filed by a United States agent or employer.  A separate O-2 petition is filed for persons accompanying or assisting the O-1 artist or athlete.

            There is a requirement of consultations for O-1 and O-2 petitions, that is, written advisory opinions from an appropriate union, if one exists, on the beneficiary’s ability and achievements.  But such consultations may be waived. 

P Visa/Status for Athletes and Group Entertainers 

            As an alternative to O category, aliens who perform as an athlete, individually or as part of a group or team at an internationally recognized level of performance may be eligible for P-1 A status.

            And aliens who perform artists or entertainers, individually or as part of a group, or are an integral part of the performance of such a group, that has been recognized internationally as outstanding, may be eligible for P-1B status, under Section 101(a)(15)(P) of the Act.

            P petitions are also filed on Form I-129 ($130.00 filing fee) by a U.S. employer, sponsor or agent within six (6) months prior to the services to be rendered, with the Regional Service Center having jurisdiction over the place of work or performance.

            P-I petitions for group entertainers require documentation showing that the group has been recognized internationally and that seventy-five (75) percent of the members of the group have had sustained and substantial relationship for at least one year, with exemptions to certain groups.

            Consultations with, and a written advisory opinion from, an appropriate union on the nature of the work to be done and the alien’s qualifications are required, except when the Regional Service Center obtains such an opinion telephonically, or there is no appropriate labor union.

             So, there are other alternatives to H-1B category available to qualified aliens, at this time when the H-1B cap has been reached.