Get Ready for the New H-1B Work Visa Filing Season
The start of the new H-1B work visa filing period is right around the corner. The U.S. Department of Homeland Security, Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions as usual, on April 1st, for new H-1B classifications subject to the annual H-1B cap.
Businesses seeking to employ a foreign national in H-1B status should start preparing the petition as soon as possible. Although USCIS begins accepting petitions on April 1st, there are other steps that must be done in advance, including a separate application with the U.S. Department of Labor. Therefore, careful planning and preparation are a must, to ensure that the H-1B petition is ready to be submitted to 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 and ability. To qualify as a specialty occupation, the intended job must require at least a bachelor’s degree or its equivalent, along with the theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include jobs in IT and computer science, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, among others.
In addition, an employer cannot use H-1B workers in a way that would negatively affect the wage or working conditions of U.S. workers employed in the same or a similar occupation. Therefore, an employer must pay the H-1B worker a wage that is at least equal to the prevailing wage rate established for that type of occupation in the applicable geographical area.
Timing of the H-1B petition.
Under current law, there are 65,000 H-1B visas available each year to individuals holding a bachelor degree or equivalent. Of these, 6,800 are set aside for the H1-B1 program for citizens of Chile and Singapore, thereby effectively leaving only 58,200 H-1B visas available for prospective employees from the rest of the world. There are also 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 after the filing period started on April 1st. Also, the number of H-1B petitions filed by U.S. employers has been on the rise. In FY 2014, USCIS received approximately 124,000 H-1B petitions. For FY 2015, by April 7, 2014, USCIS had received approximately 172,500 petitions, more than double the number of available visas. FY 2016 was no exception, as USCIS received approximately 233,000 H-1B petitions during the first week of April, almost three times the number of available visas. Consequently, USCIS subjected the petitions it received to a random, computer-generated selection process equivalent to a lottery. It is anticipated that this year will see the same trend.
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 are easily accessible, such as corporate records for the petitioning employer. However, there are other documents that must be obtained from third-party agencies. 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 as soon as the filing period opens on April 1st.
If you are seeking H-1B classification for the upcoming fiscal year, contact Attorney Raluca (Luca) Vais-Ottosen at email@example.com or (608) 252-9291.
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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