H-1B for Professional Workers

Purpose of H-1B Visa Program: The H-1B visa program allows U.S. employers to hire foreign national professionals.

Many U.S. employers actively recruit worldwide for professional talent in fields ranging from Information Technology (IT) specialists, and market research analysts, to professors and scientists. Other Examples of H-1B specialty occupations include accounting, architecture, business specialties, education, engineering, health and medicine, law, and theology. Although an LVN does not qualify as a specialty occupation for an H-1B purpose, certain nurse positions that require at least a bachelor's degree may qualify. 

The H1B Visa (Professional in a Specialty Occupation) allows a U.S. employer to fill a position requiring the minimum of a baccalaureate in the particular field with a qualified worker from abroad. The foreign worker must possess that U.S. degree or an acceptable foreign alternative. In some cases, a combination of studies and relevant experience may substitute for the degree if it is determined by a credentials expert to qualify the foreign professional. The H-1B category is an expedient and lawful method to bring foreign-born professionals temporarily to the United States, and therefore the most widely sought after visa classifications for employment in the United States

An H-1B visa is available for:

What is a “Specialty Occupation”
The H-1B process

1.First, the U.S. employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor.

2.After receiving notice of approval of the LCA, the U.S. employer must file Form I-129, Petition for Nonimmigrant Worker, with the Bureau of U.S. Citizenship and Immigration Services. Employers may file an H-1B Petition six months before the start of the fiscal year, which begins each year begins on October This means employers may submit petitions starting April 1 of each year but the employee may not start work in H-1B status until October 1 of that year.

3.Upon approval of the Form I-129, the employee will either be issued a new I-94 Card (This comes on the I-797 Notice of Approval) to reflect the employee's new H-1B status or will be permitted to apply for an H-1B visa at U.S. embassy or consulate abroad.

The H-1B visa is a temporary visa. It is issued for three years and can be extended for an additional three years for a total of six years of H-1B time. An H-1B visa does not lead to permanent residency. However, H1-B professionals do not need to maintain a foreign residence abroad and may pursue permanent residency while they are in the United States in H1-B status. the law allows a person on an H-visa to have "dual intent," which is arguably the most beneficial aspect of obtaining this visa. Under the dual intent doctrine, a person may come to the U.S. temporarily and lawfully seek permanent residence in the United States at the same time. Therefore, the filing of a labor certification (also known as PERM) or an employment based preference petition will not cause denial of an H-1B petition filed with the USCIS, or an application for an H-1B visa stamp at a U.S. Consulate abroad pursuant to H1B petition approval by the USCIS.

The H-1B Cap

Because of the high demand for professional workers in the United States, and the annual limit on the number of H-1B visas (often referred to as the H-1B cap), the timing of H-1B petitions is critical. 
The H1B cap is the number of H1B visas available during a Fiscal Year. 
The H1B visa cap is also more commonly termed as the "H1B visa quota". 

The H1B Cap-Subject Visa system is split down further into 2 groups: 
-there is the Regular Cap 
there is also the ADE Cap 

In 2012 there are 85,000 cap subject H1B visas available to be issued 
-65,000 cap subject visas are available for the Regular Cap 
-20,000 cap subject visas are available for the ADE Cap 

The Regular H1B Cap is available to those living abroad that want to obtain their first H1B visa, and to those in the US that want to change their current visa status to H1B visa status. 
The ADE Cap (Advanced Degree Exemption) is available to those that graduate from a US universty/college with an Masters level or higher level degree.

H1B Visa Cap Start Date:
H1B Visa Cap End Date:
This Year:
H1B Status and Visa Petition Tracking:
Factors that affect and influence the H1B visa cap each year:

Every year there is not one, but many different factors that can all, or in part, combine to influence what will happen during each year for H1B sponsorship employment demand, and for the volume of H1B visas that are filed by US employers. 

Each factor carries a 'weight' and some are more important and influencial than others. 

The H1B market is determined by both the timing and the level of fusion between all the different factors during the course of each year.

These factors determine the duration, and how quickly the H1B cap will be reached each year:

- supply: the fixed number of H1B visas that are available to be issued for the year. 
- supply - versus the demand by Foreign nationals who want to obtain H1B visas + the demand by US companies who want to hire H1B workers 
- current H1B rules, regulations and processes for visa sponsorship and visa petition filing. 
- new H1B rules and laws that affect which companies can or can not sponsor/file visas. 
- overall economic conditions 
- econonic conditions for each industry sector and sub-sectors 
- momentum and demand within new emerging markets 
- economic conditions for different geographical locations 
- overall employment conditions 
- employment demand for different industry sectors and sub-sectors 
- employment demand for different professions and levels of profession 
- employment demand in different geographic locations 
- the overall current demand for H1B workers by US companies 
- qualified labor shortages at 'H1B-level' for specialty professions 
- qualified labor shortages at 'H1B-level' in different geographic locations 
- the number of new sponsor companies that enter the market to hire and file visas 
- the number of Foreign nationals that seek to obtain H1B sponsorship and work visas 
- is there a lottery selection or a deadline cut off date to file visa applications 
- overall consumer perception and market confidence rates 
- some mainstream media and political news and hype that surrounds the H1B visa program 
- will anything new, unexpected and unforeseen happen in the market or with the immigration system that could directly or indirectly affect the H1B visa program

H1B Visa Cap Historical Statistics and Trends from 2003 – Present

From 1999 to 2002 the cap was temporarily raised to 195,000 during Y2K and the dotcom boom, but was not reached during those Fiscal Years 

The ADE cap of an additional 20,000 visas was introduced in 2005 (FY2006). 

* Each year H1B visas can start to be filed from April 1st onwards. 

The chart below shows the number of H1B visas available during each year and the dates reflecting the duration and speed that the cap was reached.

 

Year H1B Cap Numbers Date H1B Cap Reached
H1B 2003 (FY 2004 cap) 65,000 October 1, 2003
H1B 2004 (FY 2005 cap) 65,000 October 1, 2004
H1B 2005 (FY 2006 cap) 85,000 August 10, 2005
H1B 2006 (FY 2007 cap) 85,000 May 26, 2006
H1B 2007 (FY 2008 cap) 85,000 April 3, 2007
H1B 2008 (FY 2009 cap) 85,000 April 7, 2008
H1B 2009 (FY 2010 cap) 85,000 December 21, 2009
H1B 2010 (FY 2011 cap) 85,000 January 26, 2011
H1B 2011 (FY 2012 cap) 85,000 November 22, 2011
H1B 2012 (FY 2013 cap) 85,000 Available

 

The H-1B cap applies only to new employment of an H-1B professional. If an employer applies to extend the status of a current H-1B employee, the extension is not counted against the cap. Likewise, if an H-1B professional who has already been counted against the cap seeks employment with a new company, the new company may file an H-1B Petition without regard to the H-1B Cap. The only situation where this will not be true is one where the H-1B professional is moving from an exempt H-1B employer to a non-exempt H-1B employer. In this scenario, the H-1B professional had never been included in a previous H-1B Cap.

H-1B Cap-Exempt Employers

Persons may be exempt from the H-1B cap if they work at an employer who is always allowed to sponsor a professional worker for temporary employment in the United States. 

The rule is that the person must work at the employer who qualifies for an exemption, not that the person must be employed by the exempt employer. For example, a doctor employed by a medical group but who provides services at a university hospital would be exempt from the H-1B cap.

The following kinds of employers are exempt from the H-1B cap:
H-1B Periods of Admission and H-1B Extensions

H-1B visas are issued for an initial period of three years, at which point the employer may apply for an extension the employee's H-1B status for an additional three years. The maximum period of admission in H-1B status is six years. However, an exception to this rule exists for H-1B employees who have a PERM labor certification application, or a Form I-140, Petition for Alien Worker, that was filed on their behalf and that has been pending for at least 365 days before the expiration date of their six years of admission in H-1B status. In these cases, employers may apply for three-year extensions beyond the six-year period. The purpose of this rule is to allow H-1B employees who are being sponsored for U.S. permanent residency to remain in the United States while their applications for permanent residency are being processed.

H-4 Status for Family Members of H-1B Professionals

Spouses and unmarried children under 21 of H-1B employees are eligible for H-4 status. Persons with H-4 status may study but may not work in the United States. 

The content of this article is provided for informational purposes only. If you need help with an Immigration question please call us at 214 432 2499 or email your query at info@seemamehtalawfirm.com