April 2nd marked the start of the H-1B visa season. That is the day that U.S. employers were able to begin filing petitions with the U.S. Government to request H-1B status on behalf of professional foreign workers who are subject to the annual H-1B visa cap. Foreign employees approved for H-1B status are permitted to commence work in the United States on October 1, 2012.
Thousands of American employers utilize the H-1B visa as a way to hire and retain skilled foreign national employees. The H-1B visa allows non-citizens who possess the educational equivalent of a U.S. bachelor’s degree to work in “specialty occupations.”
Typically, a specialty occupation is one that normally requires at least a bachelor’s degree in order to enter the field and successfully carry out the duties associated with that type of position. Common H-1B specialty occupations include engineers, computer systems analysts and technicians, financial and accounting personnel, health care managers, and marketing and sales managers.
As the economy picks up, the problem with the H-1B program has been the annual cap and the significant issues that the cap can cause with timing and the commencement of employment of these H-1B eligible foreign workers.
Under U.S. immigration law, U.S. Citizenship and Immigration Services (“USCIS”) may accept only 65,000
H-1B visa petitions each fiscal year, with an additional 20,000 available for individuals who have earned advanced degrees (Master’s degrees or higher) from U.S. institutions of higher education. Once enough petitions have been received to reach the annual limits, USCIS cannot accept any more cap-subject H-1B petitions for that fiscal year.
According to the U.S. Government, as of May 18, 2012, U.S. Citizenship and Immigration Services has received
42,000 petitions for H-1B visas since April 2nd. Once the 65,000 cap is reached, then no more H-1B petitions can be filed until April 2013, with an October 1, 2013 employment start date.
Should you have any questions regarding this Alert or if you are considering hiring a skilled foreign worker, contact Michael Serotte immediately at mserotte@phillipslytle.com or 716-504-5717.
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