ON November 23, 2011, the USCIS officially announced that it had received more than enough H-1B petitions to reach the annual “cap” for Fiscal Year (FY) 2012. The visas remained available for only 7 weeks into the fiscal year, which began October 1, 2011, and the quota was exhausted a full two months earlier than in FY 2011, when the visas did not run out until late January 2011. Since the H-1B visa category was completely exhausted with over 11 months remaining until FY 2012 ends is conclusive evidence that the cap is woefully inadequate, even in a weak economy. Advocates are calling on Congress to raise the cap to accommodate more professional workers as the economy continues to improve.
Each year, the USCIS is authorized to approve up to 65,000 H-1B Petitions for foreign workers in “specialty occupations,” or those requiring a Bachelor’s degree or higher; and an additional 20,000 visas for workers holding US Master’s Degrees or higher. Over the past several years, the H-1B visa quota has not lasted through the fiscal year (October 1 to September 30) and the quota has usually been exhausted within a few weeks, if not days, of the H-1B quota opening date of April 1st. In FY 2011, however, the H-1B visa quota was not exhausted until January, meaning that H-1B visa numbers were available for more than three months into the new fiscal year, due to the economic downturn in the US. With signs of the economy improving day-to-day, FY 2012 may see an early exhaustion of H-1B petitions as in years prior to the recession.
Since the sunset of the provisions of the American Competitiveness in the 21st Century Act (AC-21) in 2002, which had raised the annual number of H-1B visas to 195,000, the “H-1B cap” has been reached in each of the several years leaving thousands of professional workers and employers seeking to hire them out of business. The annual cap of 65,000 is grossly inadequate to accommodate businesses, as has been made obvious over the past few years, with the cap reached within a few days of April 1, 2008, despite the US economy experiencing a deep recession.
Employers seeking to hire an H-1B professional must establish that the prospective employee: (1) has a bachelor’s degree; (2) seeks to come to the United States to perform services in a position requiring a bachelor’s degree or higher for entry into the position; and that (3) the degree is directly related to the nonimmigrant’s field of endeavor. The US employer or sponsor must demonstrate a need for a worker and attest that insufficient domestic labor is available to fill the need. Of course, the US employer must also establish his ability to pay the “prevailing wage” for the position.
If the intended worker is overseas, he may obtain an H-1B visa from the US Embassy upon USCIS approval of a Petition in the US. A nonimmigrant visitor in the United States, for instance on a B-2 visa, may apply for “change of status” from visitor to H-1B professional worker. The new status will be indicated on the person’s I-94, but is not a travel document. In order to travel and reenter the United States in H-1B status, a visa must be obtained at a US Embassy or consulate abroad.
The number and types of occupations that will qualify people for classification as H-1B professional workers are constantly expanding. With the development of so many new highly specialized occupations in the high-tech industries, more and more H-1Bs are necessary to fill the demand, and to maintain the status quo for more traditional occupations such as accountants and engineers.
Employers desiring to hire foreign professionals under the H-1B quota for FY 2013 may file their petitions as early as April 1, 2012, for work to commence on October 1, 2012. With that in mind, such employers would do well to file their Petitions early, or lose any opportunity to petition a necessary professional worker until April 1, 2013 when the quota reopens for FY 2014.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and www.hanlonlawgroup.com.
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