H-1B Visa 2019 (FY20) Annual Cap Update – Trump Immigration Policies Reducing Applications

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The Trump Immigration Effect is now in full force as it relates to H-1B visas, as now a week since the April 1 season opening, we still have not reached the full 85,000 visa application cap. On United States Customer and Immigration Service (USCIS) announced on April 6 the regular cap of 65,000 visa has been reached.

However the addition 20,000 visas specifically reserved for the Advanced Degree Exemption, for foreigners who have attained US institution masters or higher degrees is still yet to be filled. This year with the H1B visa lottery, which historically has been run by;

  • Running lottery for Advanced Degree Exemption 20,000 visa cap (first)
  • Then for anyone that missed out along with all other application running the lottery for the 65,000 visa main cap (second)

The order has now been switched to run the main lottery cap first and then for Advanced Degree Holders leftover, they are run with the 20,000 advanced degree cap.

  • Full lottery for the 65,000 visa main cap for all applications (first)
  • Running lottery for Advanced Degree Exemption 20,000 visa cap for any leftover advanced degree holders (second)

The reason for this switch in order, is primarily to over index to advanced degree holders by giving them a bigger chance of getting an H-1B visa. Many argue this is the right thing to due to attract the best talent to the US, however as with many things the best candidates, entrepreneurs, and people beneficial to the US economy are not always the most educated.

However the general hostility from the Trump administration to all immigrants, and making them and their employers in this case jump through so many more hoops to even get a visa, beyond what would be seen as actually helpful to the US is seeming to depress numbers.

In the last few years, there has been around 200,000 H-1B visa applications received at this time so the lottery has been necessary and no more applications were being received in the week following April 1 opening. So the fact that we haven’t got to a full cap this year, shows how hesitant employers are in investing time, money, legal teams, and resources when they are unsure what is going to happen.

As you can imagine is both terrible for foreign individuals, their families and basic life planning, as well as companies who desperately need talent to grow and innovate.



E-3 Visas for Self Employed or Founding a Company

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The E3 visa which began in 2005 has only been increasing in demand over the years as a way for Australian citizen professionals to uniquely access the US labor market. With its own separate cap of 10,000 new annual visas, lower fees and an ability to renew indefinitely (in theory) the 2 year period visas, it has proved attractive to employers and Aussies alike.

A question that has often been asked on this site and the numerous other articles we have written over the years on all things E-3 visa, is whether it is possible to found a company or be self employed under this visa category?

The general answer we have given over the years in an ‘uncertain no’ or more aptly a ‘with great difficulty’. The main reason we have said this is that the law, like that for its H-1B visa counterpart, is written with professional employment in mind. So while no explicitly denying the ability to found a company or self employment, terms that would imply an employer-employee relationship and requirements around the soundness of the employing company’s operational history make things more challenging.

In practice this is what has played out with the majority of anecdotal stories from people showing them being denied when trying or having to jump through so many hoops to make it happen, they have given up and pursued the employee path.

Now in more recent years it seems like some have found a way to make it work. Particularly in the technology sector and with Australian companies like Atlassian recently going public on the New York Stock Exchange, the ability for the enterprising Australian entrepreneur combined with the US consular and USCIS interpretation of the law has meant some have succeeded. That said it is not easy but here is some of the major items that anyone would have to take care of if they want a chance of making it work.

1. A US incorporated entity needs to be setup and ideally with either/or; 1 year of operating history, legitimate and credentialed US based board of directors, ownership or management, be well funded and have a US office address and phone number. This could be a LLC or C-Corp but the general recommendation would be a C-Corp (equivalent to a Pty. Ltd. or private company setup in Australia)

2. That the company has all the official registration numbers like FEIN to ensure it is tax compliant and other registrations relevant to its area of operations

3. If you are the (sole or one of few) employees, even if the CEO, that a clear process is evident for you to be able to be terminated which is why the US based ownership or board of directors becomes critical.

4. The usual E-3 visa stipulations of non dual-intent and proving that you will return home, specialty occupation, bachelor’s degree minimum requirements, prevailing wage, etc. all still apply

5. Paying the E-3 visa application fee of $205 USD or $276.75 AUD (as at March 1, 2017) and likely having to do first in person consular interview at a US consulate in Australia in Melbourne, Sydney or Perth (some cases of doing it in Canada, UK, Mexico, etc. first time have succeeded)

It is important to note if you trying to transfer operations from an existing Australian entity or business to be aware of the tax implications as well as the likely relatively little regard that business history will matter given we are talking about small companies and revenues.