February and March commence the season for prevailing wage requests, labor condition applications, and filing of H-1B petitions after considerable preparation. The first day of the federal government’s fiscal year is October 1st and the date when 65,000+ new H-1B visa numbers can be applied for is April 1st. An H-1B petition may be filed up to six months in advance of the need for the prospective employment. Thus, April 1st is the first date when an H-1B petition may be filed with U.S. Citizenship and Immigration Services (“USCIS”) for employment to commence on October 1st.
Based on filings from the past several fiscal years, it appears a certainty that the congressionally mandated cap of 65,000+ will be reached in April and that filings will be subjected to a random lottery to determine which cases will be accepted for adjudication. The time to prepare for prompt filing of H-1B petitions for this year is now. Anthony Drago, Jr., P.C. will work with employers and prospective employees to prepare the required paper work for filing in a timely manner.
H-1B visas are available for individuals seeking to enter the United States to work in a “specialty occupation.” “Specialty Occupation” is defined as, “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” U.S. Immigration laws permit employment in the H-1B classification for up to six years. Generally, visas are approved for a three year period and must be renewed prior to expiration in order to continue employment in the H-1B classification. The H-1B visa permits “duel intent” meaning that a nonimmigrant can enter the United States with an H-1B visa while an application for an immigrant visa or change of status to resident is pending with the U.S. Citizenship and Immigration Services (CIS).
Non-U.S. Citizens who are near the end of their permissible six (6) years on an H-1B visa, may obtain extensions for additional one or three years pursuant to the American Competitiveness in the Twenty-First Century Act (“AC-21”) as amended. Based on amendments to AC-21 non-citizens with approved visa petitions in employment based categories that are subject to unavailability for immigrant visas are eligible for three year extensions of the H-1B visa. Non-citizens who have applications for labor certification that have been pending for over one year are eligible for one year extensions of the H-1B visa.
There is an annual limit on the H-1B visas of 65,000.00 per fiscal year plus an additional allocation of 20,000 for individuals with advanced degrees from U.S. universities. Individuals who currently hold an H-1B visa are not subject to the annual cap. Individuals employed at higher educational institutions and their related or affiliated nonprofit entities, as well as individuals employed by nonprofit research organizations or governmental research organizations, are also exempt from the annual cap. If you believe your company qualifies for exemption from the cap as an entity described herein, please contact Anthony Drago, Jr., P.C. to discuss the situation.
Filing for the upcoming fiscal year commences on April 1st. To the extent your company does not qualify for any exemption from the annual cap on H-1B visas, it is imperative that your company be prepared to file for the visa on or near April 1st, the beginning of the filing season, to ensure either acceptance for the upcoming fiscal year or, at the very least, consideration for the visa lottery. Failure to file at the beginning of the filing season will cause the petition to be rejected as the filing limit for H-1B visas is generally exhausted during the first week of the filing season.
The H-1B process involves two major steps. First, the company must submit a Labor Condition Application to the Department of Labor (DOL) for certification. Second, the company must file a petition with the CIS for H-1B classification and, if applicable, change of nonimmigrant status to H-1B. If the application seeks a nonimmigrant visa, each person must go to the U.S. Consulate after an approval has been obtained from the appropriate Service Center for an interview in conjunction with the visa. Should the interview proceed properly, a visa will issue and the beneficiary can enter the United States to commence work. Unfortunately, there are often delays in getting people scheduled for visa interviews at the Consulates outside the United States. To the extent an applicant is in the United States and eligible to change status to the H-1B classification, upon eventual departure from the United States, the employee must submit an H-1B visa application to a U.S. consular office in his/her country of origin to receive an H-1B visa in his/her Passport in order to return to work.
Attorney Anthony Drago, Jr. has over 30 years of experience practicing law in Boston and represents many national and international companies with a wide variety of immigrant and non-immigrant visa issues. Our experience and expertise will provide the gateway for your visa petitions and help your company gain legal employment for indispensible professionals. Please call our office at 617-357-0400 to schedule a free consultation.