H-1B VISA PETITIONS CAN NOW BE FILED

By Attorneys Robert L. Reeves and Elsie Hui Arias

Employers seeking to employ a foreign national on an H-1B visa for the upcoming fiscal year (FY) 2007 can now file visa petitions with the U.S. Citizenship and Immigration Services (USCIS). As the cap for FY 2006 closed last year on August 10, 2005, before the fiscal year even began on October 1, employers are urged to file H-1B visa petitions for prospective employees as soon as possible as the cap is anticipated to close early again.

As noted in previous articles in this column, Congress authorizes the USCIS to issue a maximum of 65,000 new H-1B visas per fiscal year. The first 20,000 H-1B visas issued to alien workers with U.S. master’s degree or higher are exempt from the 65,000 cap; H-1B visas issued to such individuals subsequent to the first 20,000 are then counted against the overall 65,000 cap. Foreign nationals in the U.S. in lawful H-1B status who are seeking to extend their visa or change employers are not affected by the annual cap.

As we have advised previously in this column, H-1B visas are only issued to alien workers employed in a “specialty occupation” or fashion models of distinguished merit and ability. The regulations define “specialty occupation” as an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty as a minimum qualification for entry into the United States. Examples of H-1B occupations include teachers, physical therapists, accountants, computer programmers, and engineers. Employers should also be aware that if their prospective employee is currently in the U.S. and wants to change status to H-1B, that foreign national must be in a lawful nonimmigrant status through October 1, 2006, the start of FY 2007, so that change of status can be granted. If the foreign national’s current nonimmigrant status will expire prior to October 1, 2006, then that foreign national must return to their home country and consular process the H-1B visa.

Again, employers seeking to employ a foreign national on an H-1B visa for FY 2007 should apply file their visa petitions with the USCIS in the immediate future. The USCIS recently reported that the cap for H-2B visas had been reached within less than a week, so it is likely that the H-1B visa cap will be reached very quickly as well. As obtaining H-1B visas has become increasingly complex and timeliness of the filing is critical, employers seeking to petition foreign workers on H-1B visas should consult a knowledgeable and experienced immigration attorney.