What Employers Need to Know About the H-1B Visa Program

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Explore:  H-1B Immigrants USCIS Visas

U.S. employers often use the H-1B program to employ foreign workers in specialty occupations – such as engineers, scientists, and computer programmers – that require theoretical or technical expertise in specialized fields. At Shapiro Law Group, our Chicago employment immigration lawyers focus on helping employers meet their employment and business needs by securing the necessary visas for their foreign national employees. We are well-versed in the H-1B application process and, as such, can advise you every step of the way. Moreover, we understand that a timely filed H-1B visa petition is of utmost importance in order to meet quota limits.

This article summarizes some of the things that employers need to keep in mind regarding the H-1B program.

H-1B Visa Eligibility Requirements

The H-1B non-immigrant visa is available to foreign workers who are employed by U.S. companies in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. In order to qualify for an H-1B visa, the employee must meet the following requirements:

  • The applicant’s job position requires a bachelor’s or higher degree;
  • The applicant possesses at least a bachelor’s degree or its U.S. equivalent, or  a combination of education and marketing experience equivalent to a U.S. bachelor’s or higher degree; and
  • The wage offered to the applicant is at least the prevailing wage, or the actual wage paid to other marketing professionals similarly employed, whichever is higher.

You Need to Act Quickly to Meet H-1B Visa Quota

Each year, the USCIS sets the quota limit for H-1B visas. Once this quota is met, USCIS will not issue any more H-1B visas until the following year. Accordingly, it is absolutely critical that employers are aware of the quota limit, along with the date that petition filings open, so that they can submit H-1B visa petitions as soon as the filing period opens.

H-1B visa petition filings open on April 1, 2014 for the FY 2015 quota, and the H-1B visa cap is expected to be reached rather quickly, as it has been in recent years. As we reported last October, AUAP Credential Evaluation Service estimates that the FY 2015 H-1B quota will be reached by April 1, 2014. Accordingly, we strongly recommend that employers prepare in advance and mail their H-1B visa petitions on March 31, 2014 so that they can be received by USCIS on April 1, 2014. But do not send the petition in too early as any H-1B petitions subject to the cap that are received by USCIS before April 1, 2014 will be rejected.

Some Petitions Are Exempt from the H-1B 2014 Annual Cap

Not all H-1B nonimmigrants are subject to the annual quota limit, however. For instance, under the U.S.-Chile and U.S.-Singapore Free Trade Agreements, up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B program, with unused numbers in this pool made available for H-1B use for the next fiscal year. Additionally, the first 20,000 H-1B visa petitions are exempt if the employee has obtained an advanced degree in the form of a U.S. master’s degree or higher. If the employee has an advanced degree, but is not among the first 20,000 petitions filed, the petition will be included as part of the random selection process for the regular cap of 65,000.

USCIS has reported that some petitions are exempt from the 2014 annual cap. Exempt petitions include:

  • Petitions filed on behalf of new H-1B employment if the employee will work at an institution of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations.
  • Until December 31, 2014, petitions filed on behalf of employees who will work only in Guam or the Commonwealth of the Northern Mariana Islands until Dec. 31, 2014.
  • Petitions filed on behalf of current H-1B workers who were previously counted against the cap. Accordingly, USCIS will continue to process FY 2013 and FY 2014 petitions filed to:
    • Extend the amount of time a current H-1B worker may remain in the United States;
    • Change the terms of employment for current H-1B workers;
    • Allow current H-1B workers to change employers; and
    • Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B Visa Lottery

Last year – for the FY 2014 H-1B visa program – USCIS received nearly 124,000 H-1B petitions during the first week of April, and subsequently established a lottery to determine which petitions would be accepted for processing. Petitions that were not accepted in the lottery were returned to the applicant. Again this year, USCIS plans to conduct a lottery if the quota limit is met rather quickly. Accordingly, it is highly recommended that employers submit their petitions for receipt on April 1, 2014.

How to File an H-1B Visa Petition

Employers typically file an H-1B visa petition on behalf of the employee who will be the beneficiary of the visa. It is very important that employers comply with the petition process requirements since an incomplete petition will result in a rejection.

To file an H-1B visa petition, employers must:

  • Complete all sections of the Form I-129, Petition for a Nonimmigrant Worker, including the H Classification Supplement to Form I-129 and the H-1B Data Collection and Filing Fee Exemption Supplement.
  • Include a signed check(s) or money order(s) with the correct fee amount(s).
  • Ensure that the required documentation and evidence is submitted with the petition at the time of filing for timely processing, including:
    • A certified Department of Labor LCA (Form ETA 9035) at the time of filing your petition;
    • Evidence of the employee’s education credentials. If all of the requirements of the degree have been met, but the degree has not yet been awarded, a copy of the beneficiary’s final transcript or a letter from the Registrar confirming satisfaction of degree requirements can be submitted.
  • A duplicate copy of the H-1B petition and any subsequent response to a Request for Evidence or Notice of Intent to Deny (where applicable) if the beneficiary will be applying for a nonimmigrant visa abroad.

Topics:  H-1B, Immigrants, USCIS, Visas

Published In: Immigration Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ronald Shapiro | Attorney Advertising

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