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.

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.

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.

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.