What is an H-1B Visa?

Much like when in OPT (Optional Practical Training), an H-1B visa allows you to be employed by the company sponsoring the visa for up to six years (sometimes longer) in what United States Citizenship and Immigration Services (“USCIS”) calls “specialty occupations.” The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Although the possibilities are endless, examples of common H-1B eligible positions are accountants, computer programmers, database administrators, general managers, marketing research analysts, medical technologists, software engineers, and teachers.

Is an H-1B Visa Only Used for Full-Time Employment?

No! The H-1B visa can be utilized for both full-time and part-time employment. Although there are wage issues to be considered, “part-time H-1B visas” may be a life saver for both employers under financial restraints and potential employees who are scared the troubled economy will keep them from finding an employer to sponsor their visa. It is also possible to have two companies sponsor an individual for two separate part-time H-1B visas.

When Should You File for Your H-1B Visa?

To be on the safe side, April 1st! Each year, employers begin filing H-1B visas on April 1st of each year for employees who will begin their employment with the company on October 1 of the same year (beginning of the new federal fiscal year). Currently, U.S. law limits the number of H-1B visas to 65,000 per fiscal year (with some exceptions). This limit is called the “H-1B Cap.” Over the past few years (apart from last year) the H-1B Cap was met by petitions filed on the first possible day of filing (April 1). Last year, due to the poor economy and restrictions on employers who received TARP funding, the H-1B Cap was not met until after the beginning of the federal fiscal year. This year is anyone’s guess.

For more information on H-1B visas or any other business, employment, or immigration issues, please contact our offices.

Employers may resume filing H-1B petitions on April 1, 2010 for year 2011 (employment beginning on or after October 1, 2010).

For more information on the H-1B cap, please see our previous blog posts.

The H-1B visa is among the most coveted by U.S. employers because it allows foreign workers in speciality occupations with only a bachelor’s degree to be employed by the company. For many years, the H-1B has been a vital component for many company’s staffing needs.

Currently, U.S. law limits the number of H-1B visas to 65,000 per fiscal year (excluding H-1B non-immigrants who work at universities and non-profit research facilities). Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.

In recent years, the H-1B non-masters cap has been met on April 1, the first possible day to file such petitions. However, this has been an unusual year with the cap having not been met as of December 14 (yesterday). This drastic change is most likely attributed to two things: (1) current economic conditions affecting company growth and staffing needs and (2) the tightened rules on filing H-1B petitions for companies who have received TARP funding.

If your company wishes to hire an H-1B employee, it is imperative that the petition be filed as soon as possible. Once the cap has been met, employers will have to submit H-1B petitions starting April 1, 2010 for employment beginning October 1, 2010.

For more information on H-1B visa, please see our previous blog posts. If your company is interested in hiring an H-1B worker, please contact our offices as soon as possible.

What Documents Should be in a H-1B Public Access File?

To avoid potential costly fines, payment of back wages and/or disbarment from participation in key immigration programs, it is our recommendation that employers keep the following documents within each H-1B applicant’s separate public access file:

• A copy of the relevant certified Labor Condition Application (LCA) including all pages and cover sheet;
• Documentation which provides the wage rate to be paid to the non-immigrant (updated when/if wage rate increases/decreases);
• A clear explanation of the system use by the employer to set the “actual wage” the employer has paid or will pay workers in the occupation;
• Documentation which the employer used to establish the “prevailing wage” for the occupation sought;
• A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;

We work closely with H-1B employers to ensure that their H-1B Public Access Files are created and maintained correctly to avoid liability. If you have questions about H-1B Public Access Files, or any other immigration or employment related issue, please contact our offices.

1. Risk Assessment Fraud Study &endash; Part of a joint program between USCIS and Immigration and Customs Enforemcent (ICE), this study will be applicable to all family and employment-based petitions. Post-approval Applications/petitions will be chosen at random. The purpose of the study is to assist USCIS in designing profiles of potential fraud. No advance notice is required to be given to either the employer or counsel.
2. Targeted Site Visits &endash; When fraud by an employer is expected, the targeted site visits are being utilized to ask questions of the employer. Advance notice to both the employer and counsel is supposed to be provided.
3. Administrative Site Visits &endash; These site visits are conducted by contractors (usually with no knowledge of immigration law) who ask a set of specific questions provided by USCIS. The questions should be aimed at ascertaining whether the employment exists, the employer is aware that the petition/application exists, whether the employee is performing the job indicated at the salary specified on the application/petition. No advance notice is required to be given to either the employer or counsel.

So, how can employers be prepared for a visit from USCIS? In light of these latest efforts by USCIS/DHS, in addition to escalated I-9 employment eligibility enforcement measures being taken by ICE, it is imperative that employers seek adequate immigration counsel. Many of the requirements for both immigration applications/petitions and I-9 compliance are highly technical and carry tremendous liability for both employers and HR executives and staff.
For more information, please contact our offices.

What is an H-1B nonimmigrant visa?

H-1B nonimmigrant visas allow U.S. employers to temporarily (up to six years) employ foreign workers in what USCIS calls “specialty occupations.” The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Examples of common H-1B eligible positions are accountants, computer programmers, database administrators, general managers, marketing research analysts, medical technologists, and software engineers.

What is the H-1B nonimmigrant visa cap?

Currently, U.S. law limits the number of H-1B visas to 65,000 per fiscal year. In addition, excluded from the cap are all H-1B non-immigrants who work at universities and non-profit research facilities. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas. Visa extensions do not count towards the annual limits.

Why is 2009 the year of the “un-cappable” H-1B visas?

In recent years, the H-1B non-masters cap has been met on April 1, the first possible day to file such petitions. As of today, the H-1B cap still has not been met. This drastic change is most likely attributed to two things: (1) current economic conditions affecting company growth and staffing needs and (2) the tightened rules on filing H-1B petitions for companies who have received TARP funding.

How does this benefit your company?

The H-1B visa is among the most coveted by U.S. employers because it allows foreign workers with only a bachelor’s degree to be employed by the company. Most visa types require certain years of foreign employment with an international branch of the employer or far more stringent eligibility requirements. For many years, the H-1B has been a vital component for many company’s staffing needs.

If your company is considering hiring an H-1B foreign worker, please contact our offices as soon as possible.

For example, current law allows opposite-sex spouses of nonimmigrant visa holders (such as an H-1B or L-1A) to accompany their spouses to the U.S. This same right is not extended to same-sex couples. However, the State Department regulations permit a cohabiting partner of a nonimmigrant visa holder to apply for a visitor’s visa in order to accompany the principal nonimmigrant to the US. Same-sex partners could also qualify under this policy provided they can document the long-term nature of the relationship. Unlike a dependent visa granted to a spouse whose duration is for the length of the principal visa holder’s stay, the visitor visa granted to a same-sex partner generally has a one-year duration and must be renewed every six months. Moreover, unlike L-2 visa holders (spouses of L-1A visa holders), cohabiting partners are also ineligible to work while in the US.

Same-sex marriage, Civil Unions, or Domestic Partnerships are now recognized, at least to some extent, by the States of California, Connecticut, Iowa, Massachusetts, Maine, New Hampshire, Nevada, New Jersey, New York, Oregon, Vermont, and Washington. Croatia, Denmark, Finland, France, Germany, Iceland, Israel, New Zealand, Norway, Portugal, Slovenia, Switzerland, Sweden and the United Kingdom all have nationwide laws that grant same-sex partners a range of important rights, protections and obligations.

On the same day that Vermont’s House and Senate voted to override GOP Gov. Jim Douglas’ veto of a bill legalizing same-sex marriage in the state, the Washington (D.C.) City Council voted 12-0 Tuesday in favor of allowing same-sex marriages performed in other states to be recognized in the nation’s capital. According to CNN, President Obama will sign a memorandum on June 17, 2009 granting some benefits to same-sex partners of federal employees.

It is clear that we may see sooner than later a re-examination of the federally mandated Defense of Marriage Act, which, as stated earlier, forbids the Federal government from recognizing same-sex marriages

What is the H-1B nonimmigrant visa cap?
Current U.S. law limits the number of aliens who may be issued an H-1B visa to 65,000. In addition, excluded from the cap are all H-1B non-immigrants who work at universities and non-profit research facilities. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas. Visa extensions do not count towards the annual limits.

How long will it take for the cap to be met?
In recent years, the H-1B non-masters cap has been met on April 1, the first possible day to file such petitions. This drastic change is most likely attributed to two things: (1) current economic conditions affecting company growth and staffing and (2) the tightened rules on filing H-1B petitions for companies who have received TARP funding. Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue an update to advise the public that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met. This provides a small (and possibly very short) window to file additional H-1B petitions.

If your company is considering hiring an H-1B foreign worker, please contact our offices as soon as possible.

The H-1B nonimmigrant visa allows U.S. employers to temporarily employ foreign workers in specialty occupations. The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Current U.S. law limits the number of aliens who may be issued an H-1B visa to 65,000. In addition, excluded from the cap are all H-1B non-immigrants who work at universities and non-profit research facilities. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas. Visa extensions do not count towards the annual limits. In recent years, the H-1B cap has been met on April 1, 2009, the first possible day to file such petitions. This drastic change is most likely attributed to two things: (1) current economic conditions affecting company growth and staffing and (2) the tightened rules on filing H-1B petitions for companies who have received TARP funding. It appears that our economy is assisting in immigration reform!

If your company is considering hiring an H-1B foreign worker, please contact our offices as soon as possible.