H-1B Deadline Approaching

Tuesday, March 9th, 2010

U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1, 2010 for the fiscal year 2011 cap.  Histroically, demand for H-1B visas exceeds supply making April 1st a critical deadline for diligent employers.

The H-1B Cap:  Historically, demand exceeds supply

Because in fiscal years 2009 and 2008 the number of H-1B visas filed on April 1st exceeded the total number of available visas for the entire year, it is important that employers do not risk waiting beyond April 1st to file their H-1B visa petitions.  Indeed, if an employer believes any F-1 student or other current or prospective employee may need H-1B status for him or her at any point before the end of fiscal year 2011 (September 30, 2011), the employer should contact Immigration Solutions Group, PLLC to file without delay.  As the annual pattern shows for most recent years, employers have filed more H-1B petitions than could be accepted under the annual cap.  For the most recent fiscal year 2010, the “final receipt date” for new H-1B workers requesting an employment start date within October 1, 2009, through September 30, 2010, was December 21, 2009.  For the previous fiscal years 2009 and 2008, the “final receipt date” was the very first day petitions were accepted by USCIS.   The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000.  Properly filed cases are considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000.  Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.

USCIS applies a computer-generated random selection process to all petitions that are subject to the cap and were received after the “final receipt date” to select petitions for adjudication under the cap.  USCIS rejects, and returns the fee, for all cap-subject petitions not randomly selected or received after “the final receipt date.”  USCIS will monitor the number of petitions received and will notify the public of the “final receipt date.”  If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date.  USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.  Somes petitions for new H-1B employment are exempt or excepted from the annual cap. 

Eligibility

As employers compete in the global marketplace, talent is the key determination irrespective of nationality.  Immigration Solutions Group, PLLC (ISG) represents U.S. businesses who seek to employ their best and brightest workers.  An employer may use the H-1B program to hire a foreign workers in a specialty occupations that require theoretical or technical expertise in specialized fields including scientists, engineers, teachers, computer programmers, medical doctors and physical therapists.  Authorization is strictly limited to the sponsoring employer. 

For the job to qualify as a  “specialty occupation” one or more of the following criteria must be met: 

  1. Bachelors or higher degree, or its equivalent, is the minimum entry requirement for position;
  2. The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

For the employee to qualify to, the employee will need:

  1. Full state licensure, if the job requires a license to practice the specialty occupation in the state; and
  2. Completion of a U.S. bachelor’s or higher degree (or its foreign equivalent) in the specific specialty or a related field; or
  3. Education, training, or experience in the specialty that is equivalent to the completion of such a degree.

Spouse and unmarried children may be admitted on H-4 status, but may not engage in employment under that classification.

Part-time H-1B Status

Part-time H-1B status may be useful as it may allow an employer to avoid layoffs or avoid concerns of sufficient stream of revenue for full-time employment.  There is no minimum number of hours required under the regulations to qualify.  A beneficiary must still be paid the actual wage or the prevailing wage, whichever is higher. As a practical matter, the beneficiary should be either making at least a living wage or the petition should be accompanied by proof that the beneficiary has sufficient means to support himself/herself.  Also, part-time status could ameliorate an employer’s status as H-1B dependent, since each part-time worker is counted as less than a full-time worker in the calculation.

For more information, contact ISG at (202) 234-0899 or at mail@immigrationsolutions.com. 

To purchase the HR Immigration Pocket Reference copublished with SHRM, click here.

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