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H-1B Specialty Occupation Visa – The Filing Period Is Fast Approaching

On Wednesday, April 1, 2015, the U.S. Department of Homeland Security, Citizenship and Immigration Services (USCIS) will begin accepting petitions for new cap-subject H-1B visa classifications for fiscal year 2016. However, the H-1B application process begins with the U.S. Department of Labor, prior to USCIS accepting your H-1B petition for adjudication. Therefore, careful planning and preparation are mandatory, in order to increase the chances that your H-1B petition is received by USCIS in a timely manner.

Is H-1B right for you?
H-1B is a non-immigrant visa classification used for individuals who seek employment in the U.S. in a specialty occupation or as a fashion model of distinguished merit ability. To qualify as a specialty occupation, the intended job must require the theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree or its equivalent. Examples of specialty occupations include jobs in architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, among others.

The applicable U.S. immigration laws and regulations require that the hiring of a foreign worker not negatively affect the wage or working conditions of U.S. workers employed in the same or a similar occupation. In order to comply with this condition, the U.S. Department of Labor requires that the wages offered to a foreign worker must be equal to or higher than the prevailing wage rate for the applicable occupational classification customary for the geographical area of employment.

Is it imperative to file your petition with USCIS right on April 1, 2015, when the filing season begins?
Under current law, there are 65,000 H-1B visas available each year to individuals holding a bachelor degree or equivalent.1 Of these, 6,800 are set aside for the H-1B program under U.S. Chile and U.S. Singapore free trade agreements, thereby effectively leaving only 58,200 H-1B visas available for prospective eligible employees from the rest of the world. Any unused visas from the 6,800 reserved for Chile and Singapore become available for general H-1B use the following fiscal year. In addition to the 65,000 H-1B visas for bachelor degree holders, there are 20,000 additional H-1B visas available to individuals who obtained a Master or Ph.D degree from a U.S. university.

In recent years, USCIS reached the H-1B cap within the first week of the filing season. In FY 2014, USCIS announced on April 8, 2013, that it had received approximately 124,000 H-1B petitions, with the filing period having started just a week prior on April 1, 2013. For FY 2015, the filing period started on April 1, 2014. On April 7, 2014, USCIS announced that it had received sufficient petitions to reach both the bachelor and the advanced degree H-1B caps. On April 10, 2014, USCIS announced that the total number of H-1B petitions it had received amounted to 172,500, which is more than double the number of available visas. During both FY 2014 and FY 2015 the petitions received were subject to a random, computer-generated selection process equivalent to a lottery, in order to select the requisite number of petitions to be adjudicated on the merits.

Not all H-1B petitions are subject to the numerical cap. Individuals who already have H-1B status and who are seeking to extend or amend their existing status, or transfer to a new employer, are not counted against the cap. In addition, H-1B petitions filed by an employer that is an institution of higher education, a nonprofit entity related or affiliated with an institution of higher education, a nonprofit research organization or government research organization, among others, are also generally not counted against the cap.

How soon should you start preparing an H-1B petition?
Many of the documents needed in support of the H-1B petition can be easily accessible, such as corporate records for the petitioning employer and education records for the prospective employee, among many other documents. However, there are other documents that must be obtained from third-party agencies, such as the Labor Condition Application with the U.S. Department of Labor. If this is the employer’s first H-1B petition on behalf of a foreign worker, there is another step required with the U.S. Department of Labor, prior to filing the Labor Condition Application.

All of these steps take time and proper coordination, in order to ensure that all requisite pre-approvals are secured, and all documents assembled in time for USCIS to receive a complete application package on April 1, 2015. If you are considering seeking H-1B classification for FY 2016, contact your DeWitt attorney or contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291.

1 On January 13, 2015, a bi-partisan group of six U.S. Senators introduced the Immigration Innovation Act (“I-Squared Act”). The bill proposes an increase in the H-1B numerical cap, among other provisions. The bill was originally introduced in the U.S. Senate in January 2013 but it was not passed into law at that time. We will monitor and provide updates on any developments regarding the 2015 bill. However, it is unlikely that a final resolution of this legislation will take place prior to the start of the next H-1B filing period on April 1, 2015.

About the Author

Raluca Vais-Ottosen has assisted numerous clients with Immigration matters ranging from family-based and individual Immigration applications, to employment related visas and I-9 employment eligibility verification issues. In addition to her Immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by State and Federal agencies, as well as Employment Litigation.

Contact Luca by email or by phone at (608) 252-9291.

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