By Attorneys Gregory J. Boult and Nancy E. Miller
The H-1B filing season is once again upon us. Starting on April 1, 2015, U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting petitions from employers who want to hire professionals with specialized knowledge. If approved, the non-citizen will be able to start work in the United States on October 1, 2015. As in recent years, it is again anticipated that many more petitions will be filed by employers than there are visas available for their petitioned employees. As a result of the overwhelming demand for H-1B visas, it is imperative that employers begin preparing as soon as possible to ensure the timely submission of their petitions on April 1, 2015.
An H-1B visa allows a foreign national who is a professional with specialized knowledge to temporarily work in the United States for a United States employer in his or her professional capacity.
An individual is qualified to seek H-1B status if the underlying position requires a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) is a minimum qualification for entry into the occupation in the United States. Potential H-1B beneficiaries are diverse, and range from accountants and engineers to pharmacists and secondary school teachers. While some positions are more common than others, the immigration laws are broad enough to include individuals of varying backgrounds as potential H-1B beneficiaries.
An individual who is granted an H-1B visa is permitted to maintain this status for a total of six years. Once this six year period is reached, the employee must typically depart from the United States for one year prior to seeking a new H-1B visa. However, employers often seek to change the status of H-1B employees through employment-based immigrant visa petitions which result in lawful permanent residence status (meaning a green card). These individuals benefit from the ability to extend their H-1B status beyond the six year limit while awaiting lawful permanent resident status.
The petitioning individual or legal entity must be located in the United States; and an actual, legal employer-employee relationship must exist between the parties. While most individuals maintain H-1B status in the United States as full-time employees, an employer is nevertheless permitted to petition an individual for part-time employment in H-1B status as well.
By statute, the number of H-1B visas which may be issued each fiscal year is limited. And while there has been continuing discussion in the U.S. Congress to increase the number of annual visas available in the H-1B category, at present the number of visas available for the fiscal year 2016 is set at 65,000 (the H-1B “cap”). In addition to the numbers under the “cap,” there are also 20,000 visas available to those who have obtained masters degrees in the United States. These 20,000 visas are not subject to the “cap,” and thus are often referred to as “cap exempt” petitions. As has occurred in the past, when the number of petitions exceeds the “cap,” a random lottery is conducted by USCIS to determine which petitions are processed and which are returned unprocessed to the petitioning employer. Only those petitions that have been received by USCIS before the determination that a lottery is necessary will be eligible for the process. As a result, employers must file their petitions at the very beginning of the filing period or risk being excluded from the lottery process.
Obtaining H-1B status for an individual consists of three steps. The first step is obtaining a certified Labor Condition Application from the U.S. Department of Labor. The second is obtaining an approved petition from USCIS. And the third is either obtaining an H-1B visa (if abroad) or a change of status (if already in the United States in another status which permits a change of status to that of H-1B). In addition, spouses and children under the age of twenty-one can obtain non-immigrant status in the United States along with the spouse/parent who obtains H-1B status.
Obtaining H-1B status in the United States is not a simple process – obstacles abound, including if the petition will even be processed by USCIS. An experienced and knowledgeable immigration attorney will be able to thoroughly assess an individual’s eligibility for H-1B status, as well as provide representation throughout the entire H-1B process. At Reeves Miller Zhang & Diza, we take great pride in having successfully represented numerous employers of varying sizes – from individual, sole proprietors to large multinational corporations – in meeting their immigration needs for H-1B employees.