11/01/2005

Under the AC 21 Act, the employees of the higher education institutions of their related or affiliated entities are exempted from 65,000 annual cap of H-1B visas. As one can imagine, a substantial number of these employees may hold a U.S. master or higher degree. Accordingly, these employees holding a U.S. master or higher degree are exempted either as the employees of such exempt entities or as an individual who holds a U.S. master or higher degree.

From the perspectives of the alien employees, these two options give different opportunities. If their H-1B status is granted under the exempt provision for the higher education institutions or their related or affiliated entities, their H-1B is guaranteed 100% as there is no cap for these exemptions. However, the drawback of this option is that once they get H-1B status through this exemption and decide to change employment with a private profit employer, they will be subject to the annual cap and unless there are cap numbers available, they will not be able to get H-1B status with the new employer. 

On the other hand, if they take 20,000 special numbers rather than as the employees of the higher education institutions or its related or affiliated entities, when they change employers, they will not be subject to the annual cap and may be able to obtain the H-1B status with a new private profit employer.

The foregoing discussion raises a number of complicated issues: Firstly, whether the employer and the alien would have an option to choose one of the two. This question is related to the question of whether or not the USCIS would take out from 20,000 numbers the employees of higher education institutions or its related or affiliated entries who hold a master or higher degree from the U.S. schools. If they do, there may remain only a few numbers available for the U.S. degree holders to work with private profit employers. 

It is not clear whether this question will be answered in the forthcoming 20,000 H-B implementation regulation, but initial sign appears to be in favor of the U.S. degree holders to take the employment with a private profit business in that unofficial view expressed by the authoritative official of the USCIS indicates that when an alien is eligible for H-1B under these two provisions, the H-1B petition may be approved as the employee of the higher education institutions or its related or affiliated entities. Should this view be materialized in the implementation regulation, the 20,000 numbers may remain more or less intact and available for the U.S. degree holders to take a job with private profit entities. 

From the perspectives of an individual alien working for the higher education institutions or related or affiliated entities, such view may cut both ways in that it may be taken as a good news in that their H-1B opportunity is 100% guaranteed, but it also can be taken as a bad news in that when they want to change employment to a profit private entities, unless they have a cap number, they will not be able to obtain the H-1B approval. The real winners are those U.S. degree holders who will not work for the higher education institutions or its related or affiliated entities as more H-1B numbers may become available for them. This raises a second issue for the lawyers as related to their potential conflict of interest between the employer and the employee. Depending on which provision they recommend and opt, it could hurt either the employer or employee.