H-1B visa cap season is rapidly approaching as the deadline to file for Fiscal Year 2015 begins April 1, 2014. Employers seeking to hire professional, foreign workers should contact our office to start the H-1B visa process. Whether it is your first time filing an H1B visa or you have utilized the H1B visa process in the past, our office is ready to provide you the support and attention you require. Please contact our office immediately to discuss your case. Contact us today.
The H-1B visa has an annual numerical limit “cap” of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.
Last year, USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. USCIS reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.
On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.
This year, the annual H-1B numerical quota is expected to be reached earlier than in previous years. Therefore, we strongly encourage employers to begin preparing for the H-1B visa process now. It is important therefore to prepare now and have your application filed by April 1, 2014.
The H-1B visa applies to people who wish to perform services in a specialty occupation. The job must meet one of the following criteria to qualify as a specialty occupation:
- Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
- The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.*
For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:
- Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
- Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
- Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
Labor Condition Application (LCA)
You must submit a certified Department of Labor (DOL) LCA (Form ETA 9035) at the time of filing your petition. This certification process takes at least 4-7 days and up to 7-14 days for new, first-time filers that may be subject to business verification before the certification is issued.
The LCA includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:
- The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
- The employer will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application there is no strike or lockout at the employer place of business. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of business.
The LCA certification must be attached to the H1B visa filing and therefore the LCA certification must be completed before April 1. It is important therefore to prepare the H1B visa now in order to ensure that the H1B visa application is ready to be filed by April 1, 2014.
OPT (Optional Practical Training) F1 Student Visa Holders/Employees
Please consider all F-1 students currently working at your company pursuant to OPT employment authorization. It is critical that the need for an H-1B visa be considered and evaluated even if the employee currently has employment authorization. Failure to timely file their H-1B visa this filing season could result in a lapse of employment authorization.
If an OPT holder has timely filed an H-1B petition that request a change of status to H-1B on October 1 qualify for a cap-gap extension. Timely filed means that the H-1B petition was filed during the H-1B acceptance period which begins April 1, 2013 while the student’s authorized F-1 duration of status (D/S) admission was still in effect. Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States. F-1 students who have entered the 60-day grace period are not employment-authorized. If an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).
A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.
F1 students on OPT are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.
There are different fees depending on the type of H1B petition you are submitting. Generally, the following fees may be required:
- $325.00 I-129 Base Filing Fee
- ACWIA Training Filing Fee
- $750.00 for employers with 1 to 25 full-time employees, unless exempt
- $1,500.00 for employers with 26 or more full-time employees, unless exempt
- $500.00 Antifraud Prevention & Detection Filing Fee
- $2,000.00 Public Law 111-230: Petitioner who employs 50 or more employees where more than 50% of its employees in the US are in H1B or L1 nonimmigrant status must submit this filing fee.
- $1225.00 Premium Processing Filing Fee
Please contact our office immediately to discuss your case. Contact us today at 800-993-9097 or email@example.com.