Bradley & Riley PC

April 2, 2012 marks a big day for employers chomping at the bit to file H-1B visa petitions on behalf of eligible employees or candidates for employment.  April 2[1] is the first day that employers can file cap-subject H-1B visa petitions for the 2013 USCIS fiscal year (which runs from October 1, 2012 – September 30, 2013).

H-1B Visa Cap: The H-1B visa cap is set by regulation at a limit of 65,000 per fiscal year.[2]  Not all employers and/or potential H-1B visa employees, however, are subject to the cap.  Those employers who qualify as institutions of higher education, related or affiliated nonprofit entities or nonprofit research organizations or governmental research organizations are not subject to the cap.[3]  These employers can file H-1B visas year-round, without regard to whether the cap has been met or not.  Foreign nationals who are already in the United States in H-1B visa status also are not subject to the H-1B visa cap.  Consequently, when it comes to filing on April 2, 2012, who are we talking about?

In most cases, the likely candidates for H-1B visas are those currently working for employers in F-1 status on Occupational Practical Training or potential employees here in the U.S. in H-4 (or some other type of nonimmigrant) status.

Now that we have identified the employees most likely subject to the H-1B visa cap, the next question becomes, how do I identify whether the employment position qualifies for an H-1B visa?

H-1B Visa Program – Specialty Occupation: The H-1B visa program is designed for foreign nationals seeking to come to the U.S. temporarily to perform services in a specialty occupation.[4]  A specialty occupation is an occupation that (a) requires the theoretical and practical application of a body of highly specialized knowledge (that is, something more than on-the-job experience is required to perform the duties of the position); and (b) the attainment of a bachelor's degree in the specific specialty (the job must require a bachelor's degree in a specific field, not merely state, "bachelor's degree required").[5]  So, if the employment position requires a bachelor's degree in a specific area of study and the candidate for employment possesses such a degree (or the foreign equivalent), you have a good chance of qualifying for an H-1B visa.  When reaching the point of filing, keep these tips in mind:

H-1B Key Pointers:

  • File early.  Once USCIS receives enough H-1B visa petitions to exhaust the 65,000 statutory quota, it will cease accepting H-1B visa petitions (for cap-subject employers; as mentioned above, cap-exempt employers can file year-round).  Last year, USCIS announced that it had received sufficient H-1B visa petitions to max out the quota on November 22, 2011 (although it is difficult to tell whether that timeframe will hold this year).
  • As mentioned above, the H-1B visa is designed for positions that qualify as specialty occupations.  Take great care in describing the job opportunity in specific and clear terms so that USCIS can clearly see it qualifies as such.
  • Submit evidence that the foreign national employee (or potential employee, if he or she is not currently employed with your company) has maintained valid status for his or her entire stay in the U.S.  USCIS is frequently asking to see such evidence, which would consist of W-2 Forms and paystubs covering all employment in the U.S. and Forms I-20 covering all periods of study in the U.S.
  • Make sure you submit the correct filing fees.  The H-1B visa petition will be rejected if you don't.  Filing fees are (the following fees are those for cap-subject petitions):  $325 base fee; $500 Fraud Prevention and Detection Fee (applies the very first time you file an H-1B visa for an employee); $1500 fee for employers with more than 25 full time employees and $750 fee for employers with 25 or fewer full time employees.  Additionally, for those H-1B petitioners who employ 50 or more employees in the U.S. and whose U.S. workforce consists of more than 50% H-1B or L employees, there is an additional $2,000 fee.
  • Don't forget dependents!  H-1B visa-holders' spouse and children qualify for H-4 visas.  It is important to secure such visas for dependents so that they maintain valid status.
  • Don't jump the gun with the employee's start date.  Even though the H-1B visa petition will be filed on April 2 (or shortly thereafter), the first day these employees can work is October 1.

 

[1]  The H-1B visa filing window opens every year on April 1.  Because this year, April 1 falls on a Sunday, the first official filing day isMonday, April 2, 2012.

[2]  Immigration and Nationality Act ("INA") § 214(g)(1)(A)(vii).  There are additionally 20,000 H-1B visas available for those foreign nationals who have earned Master's Degrees (or higher) from a U.S. institution of higher education.  § 214(g)(5)(C).

[3]  INA § 214(g)(5)(A-B)

[4]  8 C.F.R. § 214.2(h)(1)(ii)(B)

[5]  INA § 214(i) (emphasis added)

 

 

Categories: Immigration Law

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