H-1B season is around the corner. On April 1, 2010, the United States Citizenship & Immigration Service (USCIS) will accept H-1B filings for the Fiscal Year 2011. The start date that can be requested for such petitions will be October 1, 2010 (first day of Fiscal Year 2011). H-1B “Cap Filings” do not include filings for employees/candidates who already hold H-1B status which means that H-1B extensions, H-1B amendments, and H-1B Change of Employer petitions are not considered H-1B Cap filings. It is important to file your H-1B petition so it reaches USCIS on April 1, 2010 to ensure the best chance of being included in the 2011 fiscal year. This article will cover general questions regarding H-1B Work Visa eligibility, application procedures, limitations and the Cap-Gap Automatic Extension for F-1 students.
The H-1B is an employment based, non-immigrant visa category for temporary workers. Many U.S employers use this program to hire foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field along with at least a bachelor’s degree or its equivalent. In some circumstances requisite experience can substitute for education depending on the individual case. Typical H-1B occupations include: accounting, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, doctors, nurses, scientists, architects and lawyers.
One of the limitations of H-1B visas is the “Cap” which refers to annual numerical limitations set by Congress on certain nonimmigrant visa classification. The current annual cap on the H-1B category is 65,000. The quota only applies to the new H-1B applications, and does not apply to H-1B status holders who are seeking extensions or change of employer. The earliest start date an employer may request on an H-1B Cap petition is October 1st (first day of the fiscal year) and the earliest any employer may submit an H-1B Cap petition to the USCIS is April 1st (six months in advance of October 1st).
The H-1B filing process should begin at least six months prior to the requested H-1B employment date. In order to apply for the H-1B status, a U.S. employer has to sponsor the H-1B petition to employ a foreign professional. An alien cannot apply for an H-1B status on their own. The employer must file a Labor Condition Application (LCA) with the USCIS and a Prevailing Wage Determination with the Department of Labor. After the LCA is certified, the employer must file the Form I-129 along with the LCA to the USCIS.
Because of the H-1B visa’s temporary nature, the total period of authorized stay cannot exceed six (6) years. However, alien may be eligible for extension beyond six (6) years if the individual has progressed through the requisite steps leading toward permanent residency. If a petition for Lawful Permanent Residence is not made or the petition for Lawful Permanent Residence is denied, the H-1B worker will be required to leave the country at the end of the authorized employment period.
In 2008, The U.S. Department of Homeland Security released an interim final rule to extend the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The Cap-Gap Automatic Extension allows certain F-1 students with pending or approved H-1B petitions to remain in F-1 status in the United States during the period of time where the student’s status would otherwise expire. The Cap-Gap Automatic Extension also allows F-1 students currently on OPT to extend work authorization past the OPT expiration date if the student is the beneficiary of a timely-filed H-1B petition and the OPT expiration date is between April 1 and September 30. A student who has completed post-completion OPT and who is subsequently in a valid grace period on April 1 and is the beneficiary of a timely-filed H-1B petition would benefit from an automatic extension of F-1 status.
Obtaining an H-1B visa is a complex and time consuming process. Last year’s economic downturn has created a tough season for H-1B petitions. However, this year things should return to its normal state due to better economic conditions. Petitioners and foreign nationals who want to know whether they are qualified for procedures discussed in this article should consult an experienced and knowledgeable U.S. immigration attorney.
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U.S. Immigration Attorney, Robert K. D’Andrea (J.D., M.B.A.) practices exclusively in the area of immigration and naturalization law and is a principal of D’Andrea Law Corporation. Offices are located in Glendora (216 N. Glendora Ave, Suite 200, Glendora, CA 91741) and Pasadena (1055 E. Colorado Blvd, Suite 500, Pasadena, CA 91106). Contact the firm for a free consultation. Tel: (626) 240-4688, (626) 771-2953. Chinese: (626) 852-9838. Email: [email protected]. Website: www.dandrealaw.com.
