ON December 22, 2009, the US Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of H-1B petitions to reach the annual "cap" for fiscal year (FY) 2010. USCIS is using December 21, 2009 as the "final receipt date" for new H-1B petitions, which means that properly filed cases received on that date will be reviewed and USCIS will apply a computer-generated "lottery" process to all petitions that were received on December 21.The H-1B visa quota for FY 2010 opened up on April 1, 2009, making 65,000 new H-1B visa numbers available for new employment beginning on October 1, 2009 or later.
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 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 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.
Even though the H-1B category remained open for a longer period than expected based on previous years’ usage, the total of 65,000 visas is likely to prove inadequate next years as economic conditions improve. With that in mind, employers desiring to hire professional workers under the H-1B category next year should note that they may begin filing on 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.hanlonlawgroup.com
( Published December 30, 2009 in Asian Journal Los Angeles p. B4 )
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