The H-1B Visa: Background & UPDATES

March 2010 - ByShahzad Ahmed with NeJame Law

The H-1B Visa is a valuable employment-based petition. This article seeks to inform our readers of some basic aspects of this visa, while also advising of its complexities. The article also contains some important updates.

H-1B Visa Background: The H-1B Visa is a nonimmigrant (temporary) working visa that allows foreign-born professionals and those in specialty occupations to work in the US for up to six (6) years (and beyond in some cases) within their professional field. “Specialty occupation” is defined as one requiring a bachelor’s degree. Under this popular worker program, US companies bring qualified foreign professionals to perform specific jobs requiring specialized skills. The following list contains some examples of specialty occupations: architects, research analysts, chemists, chiropractors, engineers, computer professionals, lawyers, doctors, nurses, computer scientists, teachers, accountants, and certain fashion models.

Although very valuable, The H-1B visa is subject to a quota, or a “cap.” Currently, Congress has allotted only 65,000 visas annually for the H-1B category. Traditionally, this number of visas was insufficient as they all ran out quickly when the April 1 filing period began. However in 2009, due to the slow economy and the resulting decrease in hiring, it took over 8 months for the quota to be reached.

The H-1B cap does not apply to certain applicants. For example, if the applicant is extending his or her H-1B status, he or she is exempt from the cap. Also, certain non-profit organizations are exempt from the cap.

This is how the fiscal cycle of the H-1B works. The employee may begin working for the employer on October 1, when the fiscal year begins. The filing period for the petitions begins on April of that year.

ALERT: It is that time of year again! April 1 is just around the corner. If you or someone you know who is looking to apply for an employment visa based on a bachelor’s degree, do NOT delay. Prior to filing the H-1B petition to the USCIS, your attorney will need to get an approval from the U.S. Department of Labor first. Also, although the economy remains sluggish, you never know how soon the H-1B cap will be reached and you may miss the opportunity to get a H-1B visa for this year.

H-1B Visa - UPDATE 1: On December 21, 2009, the USCIS received the maximum number of H-1B visas available for this fiscal year. That means that anyone who wishing to work on an H-1B must wait until April 1, 2010 to apply for this visa, and may not start working until October 1, 2010.

In addition to the cap, another recurring issue involves establishing a valid employer-employee relationship, i.e. the petition is not being filed solely to confer an immigration benefit upon the employee. This especially comes into scrutiny when the applicant will be performing the work at a third party site.

H-1B Visa - UPDATE 2: In its recent guidance memo, USCIS established certain factors to determine whether the petitioning employer actually maintains sufficient control over the employee to constitute an employment relationship. This memo is especially helpful in evaluating and preparing for petitions involving employment at third party locations.

As can be seen from the above, the H-1B petition is an attractive, yet complex, visa option. Also, there are new regulations to be aware of. Before filing for this petition, be sure to consult with an experienced Immigration Attorney.