AS OF April 8, 2009, the USCIS announced that it had not received new H-1B visa petitions meeting the 65,000 "Regular Cap" or 20,000 additional H-1B "Master’s Cap." The USCIS announced further that it would formally publish a "final receipt date," or cut-off after which the USCIS will reject any filings for new H-1B Petitions. The "final receipt date," however means actual receipt and not "postmark date." Therefore, Employers seeking to avail of H-1B status for prospective employees should file their petitions as soon as possible unless and until the USCIS issues notice of the "final receipt date."
The H-1B visa quota for FY 2010 opened up on April 1, 2009, making new H-1B visa numbers available for new employment beginning on October 1, 2009. Over the last few consecutive fiscal years, the H-1B quota has closed within days of April 1st, such that thousands of employers have been shut-out from obtaining H-1B classification for their professional employees under an arbitrary "lottery" selection process. Perhaps due to overall economic conditions, the situation is different this year, with the USCIS indicating that H-1B numbers remain available without any hint as to when the quota caps will be reached.
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 U.S. 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 U.S. 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 U.S. Embassy upon USCIS approval of a Petition in the U.S. 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 U.S. 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.
Although certain categories of workers are exempt from the H-1B cap, there is no doubt that the 65,000 H-1B visas available for most jobs in "specialty occupations" will be used up by mid-Summer. With that in mind, employers desiring to hire professional workers under the H-1B category would do well to file their Petitions early, or risk being shut-out until April 1, 2010 when the quota reopens for FY 2011.
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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.hanlon-greene.com
( Published on April 11, 2009 in Asian Journal Los Angeles p. C2 )
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