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.
The H-1B process for cap-subject cases has changed considerably over the years. The USCIS now requires employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register and pay a $10.00 H-1B registration fee before filing a petition for the fiscal year 2023 H-1B cap. The USCIS will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple beneficiary’s during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded.
For FY 2023, USCIS announced that the initial registration period will be open from March 1 through March 18, 2022. During this initial registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each beneficiary for whom they seek to file an H-1B cap-subject petition. If a sufficient number of registrations are received, the USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2022. Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the specific beneficiary named in the registration. Upon selection in the lottery, petitioners will be notified that an H-1B petition for the named beneficiary can be filed. The petition must be filed within the period of time specified by the USCIS in the notice and petitioners will have at least 90 days to file the petition. Failure to file within the specified filing period will result in the petition being rejected.
Petitioners seeking to register for H-1B cap cases are required to provide “basic information” regarding the petitioner and beneficiary, including but not limited to: (1) the employer’s name, mailing address, and employer identification number (EIN); (2) the authorized representative’s name, job title, and contact information; (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) whether the beneficiary has obtained an advanced degree from a U.S. institution of higher education; and (5) the employer’s attorney or accredited representative. It is unclear at this time if the registration process will actually work. Nevertheless, in order to prepare for the registration period, this office must receive information for the registration period quickly.
In addition to the registration for cap cases, 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 indispensable professionals. Please call our office at 617-357-0400 to schedule a free consultation.