A BRAND new year brings renewed hope and excitement for visa numbers to open up. In years past, the first quarter of a new year meant preparations to file new H-1B visa applications on the first day the visas were available which is typically on April 1st. However, as of January 2011, the cap for the fiscal year of 2011 remains open with about 6,300 visas remaining in the quota. This means that H-1B applications may be filed continuously until the cap is filled at 65,000.
Those who are planning to wait for the fiscal year of 2012 are encouraged not to file now and perhaps obtain their H-1B visa immediately. There is no word yet on when the fiscal year 2012 quota will actually be open when there are still remaining numbers from the previous fiscal year. If you have been thinking about filing for an H-1B visa, this is the time to do it.
As a reminder, the H-1B visa is a non-immigrant visa that allows business professionals to work in the United States for a specific amount of time. The purpose of the H-1B visa is to give US employers the opportunity to hire foreign professionals if a US citizen or resident is not available for such position. In order for the H-1B visa to be issued, both the employer and employee must satisfy specific requirements. The H-1B visa is limited. The annual limit on H1B cap-subject approvals is 65,000, with a separate allocation of 20,000 cap exemptions for beneficiaries who hold US masters’ degrees or higher.
If approved, the H-1B visa holder receives the visa for three years and is renewable for another three years so long as the petitioning employer continues to employ the H-1B worker. Also, the H-1B worker can change employers so long as it is for the same position and paid similar or higher wage at any point when on the H-1B by submitting a new application on behalf of the new employer.
H-1B visa holders could essentially be on this visa for a total of six years (so long as the visa is renewed a second time) and obtain approval for additional years so long as there is an approved I-140 petition and a pending adjustment of status for the worker. H-1B’s make it an easy way to stay in status while waiting for your permanent residency to be approved. Thus, H-1B’s have become the choice of visas for those in the EB-3 Professional/Skilled Worker or Schedule A Category whose wait for a priority date may be about 3-4 years.
Additional advantages are that an H-1B visa holder can have their family be on an H-4 visa and be with them in the US. Although those on an H-4 cannot be employed, they can go to school in the United States. The H-1B visa holder can travel in and out of the US while on this visa. For many, having the H-1B visa, although not permanent, allows them to live and work in the United States for extended periods of time.
With so much to gain if approved, and so much to lose if denied, it is important to be informed about the H-1B visa. There are three main aspects to remember.
Make sure you have an employer with a bona fide job offer. The job offer must be in a specialty occupation. This means that the job position requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. The employer must have the ability to pay the proffered wage and that there is an actual job to be performed. Most importantly, no US citizen or resident must be available for the job.
Make sure you qualify. You must have earned a bachelor’s or higher degree. If the degree was earned in a foreign country, the degree must be evaluated by a third agency to make it a US equivalent 4 year bachelor’s or higher degree from an accredited college or university. If the foreign degree is 3 years bachelor’s degree, 3 years of work experience in same or similar field /occupation can be considered to one year additional education.
Make sure you have an experienced immigration attorney that has worked on H-1B visas and has had them approved. Your attorney should be able to educate you in the process of obtaining an H-1B visa. They should be able to provide a simplified process for you and your employer to go through when filing your H-1B application. Knowledge and experience in an attorney can make the difference on whether your application is approved or whether you can retain that H-1B visa you already have.
Why wait until the next fiscal year, be proactive and file your H-1B visa application today. Wilner & O’Reilly have experienced and knowledgeable lawyers who can assist you in filing your H-1B visa. Should you need our assistance please contact our office at (562) 207-6789. With three locations in Cerritos, Irvine and Riverside, we hope you take the first step in being proactive about your immigration needs. Call us today and schedule a free consultation.
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Kelly O’Reilly is a nationally known immigration expert and former immigration officer. He is a highly sought after speaker on immigration and employment compliance issues. Mr. O’Reilly serves as the current chair of the Riverside County Bar Association Immigration section and is a partner in the full-service immigration firm of Wilner & O’Reilly where he provides free consultations. Mr. O’Reilly can be contacted at (562)207-6789 or he welcomes email inquiries at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
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