March Madness Time For H-1B Preparation

March Madness is in the air. While millions of avid sports fans are rushing to finish their NCAA brackets, immigration lawyers across the country are also preparing for a frenzy. To immigration lawyers, "March Madness" is when we traditionally scramble to prepare H-1B petitions to be filed on April 1st. The first day that employers can submit H-1B applications for the 2011-12 fiscal year is April 1st. The fiscal year begins on October 1st, and H-1B applications can be submitted up to six months ahead of time - on April 1st. Congress sets the annual cap for new H-1B visas, and it is currently 65,000 plus an additional 20,000 H-1B visas for employees with a U.S. Master's degree or higher.

Before the 2008-09 FY, the annual cap for non-U.S. Master's degree petitions was often reached within days, and within a few months for other years. FY 2008-2009 saw the cap reached on April 7, 2008, just seven days after the filing period opened, and for FY 2007-08, the cap was reached on April 2, 2007. However, this past year, the cap was not reached until January 26, 2011, a full ten months after the filing window opened. If last year is an accurate prediction of this year, then employers don't have to feel rushed to submit their H-1B petitions by April 1st , as it is unlikely that 65,000 H-1B petitions will be submitted within the first five days of April. However, those employers who are sure about hiring specific workers and have been waiting to file should have their H-1B petitions ready to be filed on April 1st. If the USCIS determines that the volume of applications the first few days of April shows that the cap will be reached, then they will conduct a lottery and include all the applications submitted within the first five days of April 1st.

H-1B visas are a work visa for foreign professionals. To qualify for an H-1B, the worker must, at a minimum: (1) Be coming to work for a U.S. employer; (2) Be coming to work in a specialty occupation position. A specialty occupation ordinarily requires the attainment of a bachelors degree or its equivalent, as a minimum for entry into the occupation; and (3) Have at least the requisite bachelors degree or equivalent.

To sponsor a prospective employee for an H-1B, an employer must first obtain a certified Labor Condition Application (LCA) from the Department of Labor. The main purpose of the LCA is to assure that employment of H-1B workers will not adversely affect U.S. workers in the same occupation. An employer must attest that they will pay the H-1B worker the higher of either the same wage that similarly employed workers are currently paid, or the "prevailing wage" for similarly employed workers across the metropolitan area.

Once an LCA is approved, the employer can file the H-1B petition with the USCIS. An H-1B can be granted for an initial three year period, and can be extended for an additional three years. After six years in H-1B status (or a combination of H-1B and L-1 status), an H-1B worker must leave the U.S. for at least one year before returning on another H-1B (or L-1).

Spouses and children can obtain H-4 visas that allow them to accompany the H-1B worker, but the H-4 does not allow them to work.

H-1B Visas / by Michelle Gee