MANY people, employers and employees alike, have been in our office recently requesting information on H-1B visas and whether or not that is an option for them. The rush to investigate H-1B possibilities is normal at this time of year. April 1 of every year is the date that US Citizenship and Immigration Services begins accepting H-1B applications for processing.
65,000 H-1B visas are allotted each year. While that may sound like a large number, it can disappear rather quickly and it is important that everyone is adequately prepared. Last year the H-1B cap was reached on June 11, 2012. Everyone who submitted an application after that date was forced to wait another year in order to qualify for a visa. This year we anticipate that the cap will be reached within the same time period if not sooner. Accordingly, it is extremely important that anyone who believes that an H-1B visa may be an option for them to act immediately and make adequate preparations before the cap is reached. However, not all H-1B non-immigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B program under the terms of the legislation implementing the US-Chile and US-Singapore Free Trade Agreements. In addition, The H-1B Visa Reform Act of 2004 makes available 20,000 new H-1B visas for foreign workers with a Master’s or higher level degree from a US academic institution.
H-1B visas are available for what is known as a specialty occupation. A specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher. This means that in order to qualify for an H-1B visa, the position offered by the company must require a bachelor’s degree and the application of the knowledge acquired through the bachelor’s degree and work experience. For example, a person with a degree in mechanical engineering could qualify as a project engineer, director of engineering, etc. However, the same person would not be able to solicit an H-1B visa as cashier because they possess a bachelor’s degree, because that position does not require the application of specialized knowledge.
H-1B temporary work visas are particularly coveted by workers because the initial approvals are valid for three years, and renewable for another three thereafter. If the worker has a pending employment based immigration petition or labor certification at the end of the six-year term limit, he/she may be eligible for further extensions of one-year increments under the regulations of AC-21. The H-1B visa is ideal for professionals interested in working in the US and perhaps seeking opportunity to obtain permanent residency through employment.
The application process can be extremely time-consuming and extensive preparation is needed. The H-1B petition is centered on the employer. The employer must sign off on the Labor Condition Application and USCIS petition. They also must provide documents regarding their business. We recommend that the employers remain involved throughout the process. After all, the employer is responsible for all the information attested in the petition and Labor Condition Application.
At Wilner & O’Reilly, we make sure that the employer is a part of every step in the H-1B process, and ensure that the employer is aware of their responsibilities and decisions they must make along the way. We simplify the process and educate the employers and employees on what they will be responsible for during the H-1B application process.
If you believe that you or your employees may qualify for an H-1B visa, contact us today to receive a free consultation. With April 1 fast approaching, it is important to begin this process immediately. Our experienced and knowledgeable team of attorneys will evaluate your case and determine how to proceed.
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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 [email protected].
