H-1B

H1-B Visas Due for Release on April 1, 2009  

The yearly scramble for the H1-B visa has begun. All prospective candidates are advised to begin preparing their applications for visas now. The practice now is for the 65,000 visas to be exhausted within one day upon its release on April 1 of every year.  In the last one year, there have been many futile efforts to cause Congress to increase the number of H1-B visas to at least 100,000, but because of the increase in anti-immigrant crusade engineered by right-wing extremists, no Congressman wants to be labeled pro-immigrant. It has become extremely difficult to pass any pro-immigration legislation in the last year. Now that we have President Obama at the helms of the affairs of the United States, it is hoped that things will change by 2010, but for 2009, the same rush to obtain H1-B is now on. Despite the pressure on the government by lobbyists, it appears that the number of H1-B visas will not increase this year. In order to succeed in grabbing one of the visas, you will need to be ready to file your application a day before April 1, 2009. In fact some law firms now position their courier service agents by the door of the U.S. Citizenship Services before the dawn of April 1 because the Service usually receives more than enough applications on April 1.  

Please note that not all aliens in the United States are qualified to receive H1-B visas. To be eligible, you must be in status, have an employer who is willing and ready to petition for you and you must be qualified for the position in question with at least a bachelor degree.

 The best candidates for H1-B visas are those who have optional training work permit after graduation from college, those who are new in the United States and have valid I-94 and those outside the United States who have U.S. employers willing to petition for them.  According toWikipedia, the free encyclopedia,  “the H-1B is a non-immigrant visa category provided for in the Immigration & Nationality Act, section 101(a)(15)(H) that allows American companies and universities to temporarily employ foreign workers who have the equivalent to a US Bachelor's Degree. H-1B employees are employed temporarily in a job category that is considered by the U.S. Citizenship & Immigration Services to be a "specialty occupation". A specialty occupation is one that requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts may be considered specialty occupations.Currently the number of H-1B visas issued per year is limited to 65,000 with an additional 20,000 for those with U.S. graduate degrees and no limit for universities and non-profit and government research laboratories.Under the current law, an alien can be in the H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on the Defense Department projects may remain in the H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B stay beyond the 6-year maximum period, when: 365 days or more have passed since the filing of any application for Labor Certification, that is required or used by the alien to obtain status as an employment-based immigrant, or 365 days or more have passed since the filing of an employment based immigrant petition.”The race is about to begin again for potential employees and employers to grasp their own share of the 65,000 H1-B visas that will be released on or about April 1, 2009. In preparation for the release of these visas, small business owners are particularly at a great disadvantage. The new style is that petitioners file and pay for premium processing. The expense for obtaining one of these visas is particularly huge. Begin your preparations now.  If you are a young graduate currently using optional training (opt) employment authorization card and your employer is willing to file for you, it is time to start talking to a qualified immigration attorney in order to begin the process. You will need to obtain the prevailing wage from the Department of Labor of the State where you intend to work. Some States, especially New York will not respond to the request for prevailing wage immediately. You could apply now because the determination is usually good for 3months to one year.  In your selection of an attorney, it is imperative to confirm that the attorney has successfully obtained an H1-B visa before. The reason is that there is no room for error. Some of the fees to be paid vary depending on many factors and the number of employees your employer has. If the attorney is not familiar with the process, it is very easy to make mistakes. Once your petition is rejected because of a blunder, the cap might be reached before you return the package with the correct amount or information to the U.S. Citizenship & Immigration Services for processing.     

Finally, it is important to point out that not all H1-B petitions are subject to the 65,000 Cap. As directed by the H-1B Visa Reform Act of 2004, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters’ or higher degrees will be exempt from any fiscal year cap on available H-1B visas. USCIS also notes that petitions for new H-1B employment are exempt from the annual cap if the aliens will be employed at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, petitions for these exempt H-1B categories may be filed for work dates starting in FY 2009.