H1B

An H-1B Visa (Specialty Occupation) is a non-immigrant visa that is available to a foreign national who has been offered a job by a United States company for services to be performed in the United States. H-1B Visas are available to workers in specialty or professional occupations. It allows you to stay and work in the U.S. for an initial period of three years, but not to exceed six years. H-1B Visa holders can travel in and out of the United States, when it has been granted by a United States Consulate. Spouses and unmarried children under the age of 21 may receive visas as well.

For the current fiscal year, the H-1B cap was reached in the first week the USCIS accepted petitions, under the USCIS lottery rules.

Per federal regulations, the USCIS is only permitted to issue 65,000 H-1B visas each fiscal year. They are also required to set aside 6,800, for nationals of Chile and Singapore, thereby leaving only 58,200 visas available for the regular H-1B program. In addition, individuals who have earned a U.S. Master’s degree are processed under a separate quota of 20,000. Any remaining master’s cap applicants not selected in this special category will then be ran in the random selection under the regular H-1B cap.

Over the past two years, the H-1B quota cap has been reached on the earliest possible day of filing—April 1.

·  For the 2009 the H-1B quota was met on April 7, 2008, the earliest possible day under the USCIS H-1B lottery rules (which provides for a random drawing lottery for petitions received during “the first five business days”).

·  For the 2008 the H-1B quota was met on April 2, 2007, resulting in the first ever random lottery used to select petitions to be processed under the H-1B quota.

Last year, in a last minute decision, the USCIS announced that they would be accepting H-1B filings from April 1, 2008 to April 7, 2009. At the end of this filing period they would then run the random selection lottery to determine who made that years H-1B cap. This year we are expecting a similar filing situation. Petitions filed under this year’s cap are likely to run out within the first week of April.

The H-1B visa is highly desirable due to the fact that it is a “dual intent” visa. This means that a visa will not be denied simply because an individual has intentions to become a permanent resident. Employers interested in obtaining H-1B Visas for prospective employees do not need to demonstrate that there is a shortage of qualified U.S. workers so there is no need for Labor Certification. It’s best to have an attorney or representative present the proper documentation and establish that the offered position is a specialty occupation; also keeping in mind the employee has the appropriate credentials for the job. To further discuss your possibilities for an H-1B visa please contact our office at (714) 657-7460 for a free consultation.

We have learned through our AILA liaison that the USCIS has provided information regarding pending H1B petitions. USCIS historically accepts more petitions than it has numbers to account for denials, withdrawals, etc. Under the regular cap, USCIS accepted 71,000 petitions and under the master’s cap, USCIS accepted 22,000 petitions.

To date, 59,100 petitions under the regular cap have been approved and 9500 remain pending. 19,500 petitions under the master’s cap have been approved and 2100 remain pending. This accounts for 92% of the regular cap allotment being reached already and 97% of the master’s cap.

95% of the regular cap petitions have been touched and 94% of the master’s cap petitions have been touched. That leaves 3500 petitions untouched for the regular cap and 1400 untouched for the master’s cap. USCIS expects to get to all of them shortly, but it may not be by October 1.

Unfortunately this means that about 3,600 petitions may have passed through the first stage of getting receipted, but actually obtaining an approval may be impossible. Please contact our office if you require assistance with obtaining your h1b work visa.

The American Immigration Lawyer’s Association (AILA)  reports that beginning July 16, 2008, the U.S. Citizenship and Immigration Service (USCIS) will resume premium processing for I-140 petitions in limited circumstances. Premium processing should be available for those beneficiaries whose six year H-1B status will expire within 60 days of filing the premium processing request so that they can utilize the approved I-140 petition to become eligible for additional time on H-1B status. The I-140 petition process is the second phase of most employment-based immigration proceedings . An official notice has not yet been issued by USCIS.

This is definitely positive news for individuals who will be running out of time on H-1B status.