THE H-1B visa quota for FY 2013 officially opened up on Sunday, April 1, 2012, making 65,000 new H-1B regular visa numbers available for new employment beginning on October 1, 2012, as well as an additional 20,000 H-1Bs for persons who have attained a Master’s Degree or higher in the US. Since the H-1B quota for the last several fiscal years has closed well before the next fiscal year commenced, thousands of applicants are already preparing their H-1B Petitions to be filed on or soon after April 1, 2012, which is the earliest date on which an employer may submit a new petition. Absent some extraordinary Congressional action, the recent trend of early-exhaustion of H-1B numbers will likely continue this year.
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 for a period of three years, 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 last year’s cap reached by December 2010, only three months into the fiscal year, even while the US economy was barely clawing its way out of 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 US 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 US 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.
Although certain categories of workers are exempt from the H-1B cap, there is no doubt that the 65,000 regular H-1B visas available for most jobs in “specialty occupations” and 20,000 “Master’s Cap” visas will most likely 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, 2013 when the quota reopens for FY 2014.
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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: [email protected] and www.hanlonlawgroup.com.
