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.)

Tuesday, March 23, 2010

H-1B Program to Accept Filings on April 1st

The annual H-1B filing season is here again.  As usual, for those applications that are subject to the annual cap of 65,000, the first possible filing date is April 1, 2010.  If the petition is accepted and approved for H-1B classification, the foreign national may start working for the employer on October 1, 2010.  It is unclear as to how much demand there is in the job market for H-1B visa this year.  But if the need for H-1B professionals is confirmed, employers are advised to file as soon as possible.

Background

The H1B visa classification was created by the Immigration Act of 1990 for foreign workers in “specialty occupations” and for fashion models of “distinguished merit and ability.”  There are rigid requirements for the issuance of the H1B visa.  An annual cap of 65,000 was also imposed on the issuance of H1B visas.  The job offered must be a specialty occupation which would normally require a bachelor’s degree and technical expertise in specialized fields, such as engineers, accountants, computer programmers.  Other fields such as marketing, management, linguistics, teachers, etc., are also eligible for the H1B classification if the profession is of complex nature as shown by the industry standards and employer requirements.

The Annual Cap & Demand

The Immigration Act of 1990 imposed an annual cap of 65,000 on the issuance of H1B visas.  The cap was first reached in FY1997 and met again in the subsequent years.  The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), signed into law, on October 21, 1998, raised the annual cap to 115,000 for FY1999 and FY2000, and to 195,000 for FY 2001 through 2003.  However, the original cap was reverted for FY2004.  On February 17, 2004, the 65,000 cap was met.  For FY2005, the cap was already met on October 1, 2004, the first day the fiscal year began.  Business groups once again lobbied Congress to raise the annual cap.  For foreign workers with a U.S. master’s or higher degree, Congress created 20,000 additional H1B visas for them starting FY2005.  These special H1B visas are not being used up as fast as the regular ones.  However, the regular cap continued to be reached in record times in subsequent years on August 12, 2005, May 26, 2006, April 02, 2007 and April 08, 2008, respectively for FY2006, FY2007, FY2008 and FY 2009.  Last year, as a result of the economic downturn, the cap was not reached until December 21, 2009 for FY2010. 

Demand for Visa in FY2011

There are several factors that will affect the demand for H-1B visa this year.  True, the economic situation has significantly improved when compared to last April, as shown by the recovery of the U.S. stock market.  However, the recovery in the economy will be anemic, according to some economists.  Most of the economic growth has come mostly from government stimulus, according to them.  The housing market continues to be weak, and the high unemployment rates are not really encouraging news.  Even those who have jobs are very careful with spending their money for fear that they might lose their jobs.  On the other hand, employers who held off hiring last year might be ready to make offers to qualified professionals this year.  In fact, towards the later part of 2009, the rate of usage for H-1B visas sped up tremendously, suggesting that the demand for visas may be higher this year. 

Another factor that will come into play is government enforcement efforts.  Starting last year, the Department of Homeland Security has beefed up its efforts to scrutinize employment-based petitions including sending agents to visit tens of thousands of sites of employment and tightening adjudication guidelines.  For example, a memo was issued by the USCIS headquarters in January on the issue of "employer-employee relationship" between the petitioner and the beneficiary in an H-1B petition.   This memo affects all applications but has the most impact on staffing companies and IT consulting firms.  It is expected that the number of requests for evidence will increase this year.  Employers and foreign nationals alike must be prepared to produce sufficient evidence to prove that they meet the requirements of the H-1B program.

Conclusion

In general, if there is a need for a qualified professional worker and one cannot be found in the U.S., an employer should not hesitate to take advantage of the H-1B Program.  Although the cap is not likely to be reached immediately this year, it is still wise to file the petition as soon as possible.  It should be noted that some of the beneficiaries are already working for the employers in F1 OPT status.  In order not to interrupt their services, it is important that an H-1B visa number is secured for them.  For those applicants who possess a U.S. advanced degree, there is also an additional 20,000 visa quota available for them. There are also other exempted categories of H-1B employment that are not subject to the H-1B cap. If in doubt, employers should consult a qualified immigration attorney to determine if their petition qualifies for exemption.

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