The race to file H-1B visas for fiscal year 2013-2014 is about to begin! The H-1B temporary work visa is one of the most popular visas for foreign nationals, yet it is arbitrarily capped by Congress. Only 65,000 new H-1B visas are allocated each fiscal year, plus an additional 20,000 H-1B visas for workers with a U.S. Master's, or higher, degree. The fiscal year starts on October 1 every year, which means that employers who want to hire H-1B workers should file their H-1B petitions with USCIS on April 1 (six months in advance) in order to make sure their petitions are counted in the 65,000 annual cap.
This year we expect the annual cap to be reached within the first couple days of April. When the cap is reached within the first five days, the USCIS conducts a lottery that includes all the H-1B applications received within the first five days. The 20,000 Master's Cap applications are counted first, and Master's Cap cases not chosen are then put into the regular H-1B lottery pool.
How can a worker qualify for an H-1B visa?
To qualify for an H-1B visa, the worker's position must be a "specialty occupation." A specialty occupation typically means that the position requires at least a Bachelor's degree or higher. In recent years, the USCIS has been taking the stance that the job position must require at least a Bachelor's degree in a specific area, and not just any ol' Bachelor's Degree. This makes occupations that allow for a variety of degrees, or occupations that are cross-disciplinary, challenging applications. The U.S. employer who is sponsoring the H-1B worker must be able to prove that the position is a specialty occupation. For some positions, such as a doctor or a lawyer, it is relatively simple to prove they are specialty occupations. However, it can be more difficult to prove that positions such as IT Programmers, accountants, or other office workers are specialty occupations.
Not only must the position qualify as a specialty occupation, but the foreign worker must also possess the needed qualifications in order to qualify for the H-1B visa. Importantly, the worker must possess the necessary qualifications at the time the employer files the H-1B petition with USCIS. Determining whether the worker possesses the qualifications can be tricky because many (if not most) foreign workers are educated in countries outside of the United States. USCIS takes the position that not all foreign degree programs are equal to American degree programs, so if the foreign worker possesses a foreign degree, the employer should likely have the degree program evaluated by a credential evaluation service to confirm the worker's education is equivalent to a U.S. education.
What should be included in an H-1B petition?
In general, the following materials must be included in an H-1B petition: signed Forms I-129, I-129 Data Collection, and I-129 H Supplement (which provide USCIS with information about the employer and the foreign worker), the requisite fees, which include the I-129 filing fee, Fraud Detection Fee, ACIWA fee, and Public Law Fee (note that the Public Law Fee is only required of certain employers who employ many foreign workers), a support letter signed by the employer which outlines the terms and conditions of the foreign worker's prospective employment, the Certified Labor Condition Application (provided by the U.S. Department of Labor), and proof of the worker's qualifications, such as foreign educational degrees, transcripts, and credential evaluations.
What if I miss the H-1B Quota?
During those years when the cap is met within the first couple days, several thousand hopeful workers unfortunately do not get their H-1B visas because there are simply not enough to go around. On the bright side, there are several other temporary visas that may be available to these workers if they possess the necessary qualifications.
For example, there is an O-1 visa available to foreign workers who are exceptionally accomplished in their field. While this visa is typically utilized by doctors, scientists, researchers, and athletes, several other types of workers could qualify as well.
A worker may also qualify for an L-1 visa. The L-1 visa is for foreign workers who have been working overseas for a company that has a branch, subsidiary, or affiliate office in the United States. The U.S. branch, subsidiary, or affiliate can use the L-1 visa to transfer the worker from the overseas company to the U.S. company.
There are many immigration options available to foreign workers who want to come to the U.S. to seek employment. At the Gee Law Firm, we are experienced in securing many types of work visas for foreign nationals. Contact our office today at 650-293-0270 to speak to an attorney about your immigration options.
Additional Blog Posts
March Madness for H-1B Preparation Has Begun, Silicon Valley Immigration Lawyer Blog, March 11, 2012
Foreign Visitors Help Stimulate The U.S. Economy, Silicon Valley Immigration Lawyer Blog, February 14, 2012