Have you started the process? H-1B visas are back on April 1

IN ONE month, the H-1B visa category opens again. Will you be one of the lucky ones who will receive a three year H-1B visa for this fiscal year? In the last fiscal year, the H-1B non immigrant visa quota did not reach its cap until January 26, 2011. But previously in years prior, the H-1B visa quota reached its cap within the first couple days of it opening. There are 65,000 visas available under the H-1B cap and 20,000 for those holding an advanced degree which is exempt from the cap.  There is no indication that the H-1B visa quota will remain open for as long as it did last year. With one month away, it’s time to start working on your H-1B application.

What is the H-1B visa and who qualifies for this type of visa? The H-1B visa is a non-immigrant visa for those who are coming temporarily to the United States to perform services in a specialty occupation that require theoretical or technical expertise in a specialized field and a bachelor’s degree or its equivalent. The current annual cap on the H-1B category is 65,000. 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-1B1 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.

What’s so special about the H-1B Temporary Workers Visa? For one, most initial approvals are valid for three years, and renewable for another three after that. Should you have a pending employment based immigration petition or labor certification at the end of six years, you may be able to capture another year and renew on one year increments. The H-1B is ideal visa if your goal is to work in the United States but have no way of doing so but through employment.

Sound easy? Well in this economy finding an H-1B worker may be a challenge and going after a visa so coveted may get complicated. As the Beneficiary seeking to obtain this visa, you must find an employer willing to assume the responsibility of petitioning you. The H-1B visa is a petition filed by the employer. Most requirements to be met in applying for this case are centered on the petitioner being able to prove that such requirements are met.

Employers must be involved from the very beginning. I have found that there are US employers willing to petition an H-1B worker but would like to hand off the responsibility to the H-1B worker to do the leg work in this case. The H-1B petition belongs to the employer and is a benefit given to the beneficiary as an employee of that specific company. I recommend that Employers remain involved throughout the process. Also there has been a rise of site visits to those employers who have multiple employees on an H-1B. Questions are asked to the employers and the employees to verify that the application is bona fide and that the employee is truly working in the job position specified in the Labor Condition Application.

Petitioners need to remember that in completing an H-1B case, the issues of wages being determined and job descriptions are provided not only to USCIS but must be provided in the Labor Condition Application (LCA) which is filed with the Department of Labor. When an employer files an LCA they are attesting that they will employ this H-1B worker at a specific location and pay them the wage determined by the State Workforce Agency. Additionally, employers are responsible for paying for the application fees associated with the H-1B application. Most importantly, since H-1B employers are have received visits from USCIS to verify that their worker is performing their H-1B duties, they should have a public access file on each employee that they file an H-1B for. An employer cannot just sign off without being fully aware that this is what they are getting themselves into.

Often times, immigration lawyers are hired by the H-1B employer or worker, but the employer’s involvement goes no further than signing off and paying for the case. I have had employers who consulted our firm to assist them in an H-1B that they already filed or may have been denied, and I ask them the most simple question, what was the H-1B position you filed for and what are the duties involved? I am surprised to learn that they do not know because they left that responsibility to their lawyer or to their H-1B worker. Employers need to be involved throughout the entire H-1B process. Employers need to remember that when they sign off on the Labor Condition Application and any USCIS application they are attesting that what is stated in the application is true and correct. Because of the rise of site visits, Employers are questioned about the H-1B petition and such lack of participation in the employer’s part may cause the H-1B case to be denied or if already approved, revoked.

At Wilner & O’Reilly, we make sure that the employer is a part every step in the H-1B process. We do not start H-1B cases without the full cooperation of the employer. We make sure the Employer is aware of their responsibilities and decisions they must make along the way. In this economic downturn, employers are often afraid to sponsor an H-1B worker or find it too complicated to involve themselves in the process. We simplify this process and educate employers and employees on what they will be responsible for during the H-1B application process.

We welcome employers to contact our firm should they be interested in starting the H-1B process with a prospective employee. For employees, we ask that you bring in your employer from the very first consultation to provide them with the education they need to be fully aware of what it means to be a Petitioner. Consultations are free. We have three convenient locations in Cerritos, Irvine and Riverside. Our attorneys are ready to help you out in filing your H-1B case. Don’t wait until the last minute to start this process. The first day to file is on April 1, 2011 and you want your petition filed that first day.  Call us at (562)207-6789 or for more information about our firm at  www.wilneroreilly.com.

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Richard M. Wilner is a principal in the firm of Wilner & O’Reilly, APLC.  He is Board Certified as a Specialist in Immigration and Nationality Law by the State Bar of California’s Bureau of Legal Specialization.  He is a former Commissioner for the State Bar’s Immigration and Nationality Law Advisory Commission.  He holds a Master of Laws (LL.M.) Degree from the University of the Pacific, McGeorge School of Law in International Business Practices and a Juris Doctor from McGeorge as well.  Additionally, he was granted a Certificate in International Law by the National University of Singapore.  Mr. Wilner may be reached directly via email at [email protected] or by telephone at 714-919-8880