A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, January 30, 2016

Annual H-1B Filing Begins April 1st: Are You Ready?

Like usual, USCIS is expected to begin accepting H-1B cap cases beginning on April 1, 2016.  A cap case is one that is subject to the annual H-1B visa quota of 65,000.  For most applicants who are filing for their initial H-1B petition, unless their employer or position is exempt from the H-1B cap, their petition will likely be subject to the visa cap.

Although April 1st is still a few months away, it is actually the right time to get everything ready for H-1B filing.  Quite a few of our regular clients have already sent us documents for this year's filing. For the past few years, the annual visa cap was used up quickly during the first few days of filing. Later filers had to wait for another year to submit their H-1B petitions.  

Employee's Documents
Foreign workers who are present in the U.S. in a valid visa status (e.g., F-1 students) may request their status be changed to H-1B directly in the petition.  For individuals who are physically outside of the U.S, they must wait until their H-1B petition to be approved first before they may apply for a visa to enter the United States.   

In both situations, foreign employees must first secure a job offer from an American employer that qualifies for the H-1B visa program.  Although a self-petition is possible, it would be much easier to have an employer petition for you.  Once you received a job offer, then you must provide documents to prove that you qualify for the position.  H-1B jobs are called "Specialty Occupation" legally. They are generally professional occupations that require at a minimum of a bachelor's degree to enter. Typical H-1B job titles include computer programmer, engineer, accountant, financial analyst, data scientist, market researcher, etc.  

To prove that you qualify for the position, you must examine the general requirements for the position. If a bachelor's degree is required, you have to prove that you possess such a degree in the specified subject areas.  If your degree was not earned in America, you may have to obtain an academic evaluation to establish that your degree is equivalent to a U.S. degree.  Sometimes it is also possible to use your previous professional experience to qualify for an H-1B position.  You must prove that you possess qualifying experience, in quality and quantity. Expert opinion letters may be needed to prove your eligibility.   Other documents such as certificates, awards, etc., can also be used to support your case.  

For applicants who are present in the U.S, you should gather your passport, visas, I-94s, and other related documents to establish that you are legally here and that you may legally change status to H-1B.

Employer's Preparation
Generally a U.S. employer does not have to produce substantial amount of documents to support an H-1B petition.  Employers filing for the first time must still be ready to prove their corporate identify, federal tax ID number, address, physical location, etc.  

For smaller and/or newer companies, they must also be ready to show that they have a need for the requested H-1B professional. For instance, if a small employer with less than five employees is petitioning for a full-time accountant, the employer must explain why the services of an accountant are required.  Sometimes, smaller employers may also be required to prove that they have the financial resources to pay for the salary of the H-1B employee.  

For consulting firms which place their employees in client sites, the current policy requires that they produce substantial documents to prove that there is a valid employer-employee relationship throughout the duration of the H-1B employment.  They also must show that they will have control over the H-1B employee while the employee is working off-site. 

Competition for H-1B visa numbers is expected to be very intense this year again.  Hence, employers and employees must start early and get their documents ready to ensure timely filing of their H-1B petitions.

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