Employers Should Act Now In View of the H-1B Cap

Congress has established an annual fiscal year limitation of 65,000 H-1B visas. This is commonly referred to as the “H-1B Cap”. We at the Law Offices of Curtis Pierce strongly urge employers seeking to employ a foreign national on an H-1B visa for fiscal year (FY) 2009 to begin preparation at this time so as to be able to file visa petitions with the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2008. Due to the limited availability of initial H-1B visas, many large corporations are already preparing thousands of petitions for immediate filing in April. Accordingly, we advise all employers to file H-1B visa petitions for prospective employees on April 1, 2008.

General Information

The H-1B is a non-immigrant visa that enables professionals in "specialty occupations", i.e., those that require a minimum of a baccalaureate, to work in the United States. A U.S. degree or acceptable foreign alternative is required.

In some cases, work experience and education may be combined to meet the requirements. Non-graduates may be employed on an H-1B VISA where they can claim to be “graduate equivalent” with twelve or more years work experience in the occupation (three years of relevant work experience may substitute for one year of education).

Eligibility Requirements

The petitions are submitted by employers based on their need for non-U.S. resident employees in “specialty occupations”. The H-1B non-immigrant work visa may be issued to applicants seeking temporary work in a "specialty occupation" which requires the skills of a professional such as scientists, engineers, information technology or other computer professionals, engineers, financial analysts, management consultants, architects, system analysts, journalists, lawyers, market research analysts, teachers in elementary or secondary schools or colleges, accountants, nurses, physicians, surgeons, and dentists. This list is by no means exclusive.

“H-1B Cap”

Congress has established an annual fiscal year limitation of 65,000 H-1B visas. This is commonly referred to as the “H-1B Cap”.

Application Process

H-1B status requires a sponsoring U.S. employer. A U.S. employer filing an H-1B petition must submit the $190 petition filing fee and, unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement of this form, an additional fee of either $1500 or $750. A U.S. employer with a total of 25 or less full-time equivalent employees in the United States (including any affiliate or subsidiary of the employer) is only obligated to pay the $750 fee.

Petitioners filing Form I-129 to employ an H-1B1 Free Trade Nonimmigrant from Chile or Singapore must also complete the applicable supplements to the Form I-129 petition. Specifically, the Nonimmigrant Classification Based on Free Trade Agreement Supplement to Form I-129, and the H-1B Data Collection and Filing Fee Exemption Supplement are required.

Unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement of this form, the additional filing fee of either $1,500 or $750 is also required of U.S. employers seeking to employ an H-1B1 Free Trade Nonimmigrant from Chile or Singapore in the following situations: The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the position, and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition plus accompanying fee of $320. (Prior to FY2004, employers were required to submit an additional $1,000 fee to sponsor the H-1B worker, unless specifically exempt.) Based on the USCIS petition approval, the alien may apply for the H-1B visa, admission, or a change of nonimmigrant status.

Green Card

The H-1B visa is issued for up to three years, but may be extended. This provides a maximum stay of six years. The H1-B visa holder can apply for a Green Card (Legal Permanent Residency) if a company wants to sponsor his/her application.

Dual Intent – Can an H1-B Alien Intend to Immigrate Permanently to the U.S.?

Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

Advance Degree Exception Category

Congress authorizes the USCIS to issue a maximum of 65,000 new H-1B visas per fiscal year with some exceptions. If the employee you wish to employ holds a Master’s Degree or higher from a United States university, he or she is eligible for one of 20,000 H-1B Visas set aside for people with that level of education.

The first 20,000 H-1B visas issued to alien workers with U.S. master's degree or higher are exempt from the 65,000 cap; H-1B visas issued to such individuals subsequent to the first 20,000 are then counted against the overall 65,000 cap. Some U.S. Senators have proposed increasing the cap, but such legislation has not yet been passed by Congress. Foreign nationals in the U.S. in lawful H-1B status who are seeking to extend their visa or change employers are not affected by the annual limit.

Change of Status

Employers should also be aware that if their prospective employee is currently in the U.S. and wants to change status to H-1B, that foreign national must be in a lawful nonimmigrant status through October 1, 2007, the start of FY 2008, so that change of status can be granted. If the foreign national's current nonimmigrant status will expire prior to October 1, 2007, the foreign national must either extend their status, which may be difficult, or return to their home country and consular process their H-1B visa.

Extension of Six Year Time Limit

H-1B workers are subject to a limitation of six years; upon completing six years employment in H-1B status, they must depart the U.S. for one year before commencing new H-1B employment. The American Competitiveness in the 21st Century Act of 2000 ("AC21") permits H-1B workers to extend their employment beyond six years if certain requirements are met. Any time spent as an H-4 dependent will not count towards the six-year limitation in H-1B status. A foreign national who was in the U.S. in valid H-1B status for less than the six-year maximum period of admission, but has since been outside the U.S. for more than one year can elect to either: (1) be re-admitted for the "remainder" of the initial six-year admission period without being subject to the H-1B cap if previously counted, or (2) seek to be admitted as a "new" H-1B alien subject to the H-1B cap.

Spouse and Children of the H-1B Visa Holder

Dependents of the H-1B visa alien are granted H-4 visas. H-4 visas are non-employment authorized. H-4 visa holders may study in the United States, but my not work unless they obtain a work visa in their own right.

Change of Employers

As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Office of Communications
USCIS Update January 30, 2008
USCIS ANNOUNCES CENTRALIZED FILING LOCATION FOR CERTAIN H-1B CAP EXEMPT PETITIONERS

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today a new customer service initiative to streamline the adjudication of H-1B petitions. Effective today, USCIS will employ a special unit dedicated to processing these types of H-1B cap exempt petitions at the USCIS California Service Center (CSC). Aliens employed by certain types of educational, nonprofit or governmental organizations, as defined below (normally referred to as “cap exempt,” aliens employed by such entities are not subject to the H-1B numerical limitations). See section 214(g)(5)(a) and (b) of the Immigration and Nationality Act (INA); and 8 CFR 214.2 (h)(8)(A).

H-1B “cap exempt” petitions, as referenced here, include petitions filed by:
• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);

• Nonprofit organizations or entities related to or affiliated with institutions of higher education; and

• Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C).

Such institutions and organizations can indicate that their H-1B filing is cap exempt by marking Form I-129 (Petition of Non-Immigrant Worker) with a “yes” answer to questions 1, 2, or 3 in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (page 10).
H-1B petitioners are now encouraged to use the following special mailing address for qualifying H-1B cap exempt petitions. To determine if your petition qualifies, please make sure your institution or organization fits one of the categories listed above.

Each H-1B petitioner is encouraged to mark the outside of the envelope and the top margin of the I-129 form, with “EXEMPT.” This will ensure quick identification of the H-1B filing throughout the petition’s processing at CSC.
If a cap exempt H-1B petition is received at a different Service Center, that Service Center will expeditiously forward the petition to the CSC for processing. In the near future, USCIS will post special filing instructions to Form I-129 requiring all1 qualifying H-1B cap exempt petitions to be filed at the CSC.
Please note, the highest volume of H-1B filings occurs during the month of April (Six months before the new fiscal year). This may result in longer than average receipting times or other interruptions in processing times. The public is reminded that petitioners may file a qualifying H-1B cap exempt petition at any time of the year dependent on the petitioner’s need, and no earlier than six months ahead of the intended start date.
– USCIS –
1 H-1B “cap exempt” petitions, as referenced here, do not cover H-1B petitions filed on behalf of beneficiaries requesting an exemption from the cap on account of holding a U.S. Master’s degree or higher, requesting an extension of stay, or change of employer, or petitions requesting an amendment. These types of petitions, while also “exempt” should continue to be filed in accordance with the filing charts on uscis.gov and the Form I-129 instructions.

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