- Atty. Robert Reeves, Apr 7, 2009
Source: OFW Guide

Once again, the immigration community is bracing itself for a historical and unprecedented exhaustion of the H-1B cap. Employers can petition H-1B workers for the October 1, 2009 start date beginning April 1, 2009. Last year, due to excessive demand, the United States Citizenship and Immigration Services (USCIS) only accepted H-1B petitions for the first five business days of April. We can expect the same for this year. Until Congress acts to increase the quota, employers and H-1B workers will have to scramble for the visa numbers as soon as they become available.

The filing date is fast approaching, and once again, the quota is expected to be reached in the first week of availability. H-1B petition preparation should be nearing its final stages. Those people looking for petitioners should intensify their job search right now to ensure sufficient time for an H-1B petition to be prepared for filing within the first week of April.

Some frequently asked questions we have received about the H-1B cap follow.

What does it mean when the H-1B cap is reached?
This means that if an employer is petitioning to change your status to H-1B (for example from student or tourist status to H-1B), and the petition is received after the cap is met, the change of status cannot be granted. The USCIS will place all new cap-subject petitions received in a random lottery to be adjudicated for one of the H-1B visa numbers.

If I get an October 1, 2009 start date will I be able to remain in the U.S. legally?
You will only be able to remain in the U.S. if you maintain legal status until October 1, 2009. For example if you entered as a tourist and your I-94 card said your status was valid until October 1, 2009 or later, you would be able to remain in the U.S. You will not be allowed to work until October 1, 2009 and only if you are granted a Change of Status.

For students who are changing to H-1B status, the situation may be different. In the past the INS passed a regulation allowing students who just graduated to remain in the U.S. and start working on October 1. It is unknown if the USCIS will provide the same benefit this time.

I am in H-1B status now and I have filed an extension or I will be filing an extension. Will I be in danger of missing the cap? Will I go out of status?
No. The H-1B cap only applies to new H-1B petitions. If an employee is already in H-1B status and is being petitioned by the same employer or even a new employer, that employee is not subject to the cap.

I am not in H-1B status now. There is an employer who is willing to sponsor me. What should I do with the cap end approaching?
You should begin processing the H-1B petition as soon as possible. The longer you delay, it becomes less likely that you will receive an H-1B visa.

Those who require H-1B petitions must prepare right now to ensure that they are on track for an early filing. In all likelihood, there will be no opportunity for a late filing.

Author’s Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.

Reeves & Associates, a PLC
Unit 507 Tower One Ayala Triangle
6767 Ayala Ave., Makati City, Philippines 1226
Phone: (632) 759-6777
Facsimile: (632) 759-7888
E-mail: scasal@rreeves.com
Pasadena, CA Phone: (626) 795-6777
San Francisco, CA Phone: (415) 568-3777
Las Vegas, NV: (702) 227-9888

The author of this aricle is Audra R. Behne, a United States Immigration Attorney. She has granted me permission to disseminate this information that she has posted from another website. -admin

H-1B visas are temporary employment based visas. The most common H-1B visa is the specialty occupation visa. This H-1B visa requires that the immigrant have at minimum a bachelor’s degree or an equivalent in a field related to the occupation for which they are being petitioned. In addition, the occupation itself must require a bachelor’s degree or greater.

What this means is that it is not enough for the immigrant to have a bachelor’s degree or equivalent, but that the position should also normally require a bachelor’s degree to perform the duties of that position. The Department of Labor maintains a list of occupations and the general education requirements for that occupation

If according to the Department of Labor’s standards, the position does not normally require a bachelor’s degree or higher, the sponsoring employer must show that it is an industry standard to require a bachelor’s degree or that the position is unique and complex, thereby requiring at least a bachelor’s degree to perform the duties.

Bachelor’s Degree or Equivalent
A bachelor’s degree is a 4-year degree from an accredited U.S. or foreign university. A foreign degree must be evaluated by an accredited evaluating agency in the U.S. to be deemed equal to a U.S. bachelor’s degree.

An equivalent of a bachelor’s degree is a combination of education and work experience or just work experience that is evaluated by an accredited agency to be equivalent to a bachelor’s degree. For an H-1B visa, it has been recognized that 3 years of progressively responsible work experience can equal 1 year of college education. Thus, an immigrant with some college education or no college education can still qualify for an H-1B visa if there is sufficient work experience in the field in which the immigrant is being petitioned.

The H-1B Visa Cap
April 1 is the date to remember for H-1B visas. This is the date H-1B visas should be filed with the Citizenship and Immigration Service. There are only 65,000 H-1B visas available every fiscal year for immigrants with bachelor’s degree or non-U.S. master’s degrees. Of the 65,000 visas, 6,800 of these visas are reserved for Free Trade Visas for Chile and Singapore. So, in reality, on 58,200 visas are actually available.

On top of the 65,000 visas referenced above, there are 20,000 additional visas for immigrants with a U.S. master’s degree or higher. This advanced degree must be earned at a U.S. university to qualify.

In the past 2 years, for the 65,000 visas, there were approximately twice as many H-1B visa petitions filed on April 1 than there were visas available. This forced the Immigration Service to use a lottery type system in which cases were randomly chosen for the visas. The remaining petitions that were not chosen in the lottery system were returned with the filing fees still attached.

For the U.S. master’s degree category, the visas remained available until early May. Once the 20,000 visas were nearly allotted, the Immigration Service also resorted to a lottery system to assign the remaining the U.S. master’s degree visas.

It remains to be seen how the economy will affect the number of H-1B visa petitions filed this year.

There was an attempt to include legislation to increase the number of H-1B visas available in the stimulus packet, but this provision was removed before the stimulus packet was passed by Congress.

6 Years
With a limited exception, an H-1B visa can be extended for a total of 6 years. Once the 6 years have passed, the immigrant must change visas, obtain a green card or return home. If the immigrant is outside the U.S. for 1 year, he is once again eligible for a new H-1B visa for another 6 years.

There may be restrictions as to what type of other visas an immigrant can change to after an H-1B visa. Also and immigrant whose employer filed a green card case on his behalf may be able to extend his H-1B visa beyond 6 years. It is imperative that an immigrant seek qualified legal representation at least a year and a half before he reaches his 6 years, if he wishes to explore the options of extending or changing his H-1B visa after the 6 years.

Employer Specific
H-1B visas are employer specific. This means an immigrant can only work for the employer that filed the H-1B visa petition. If the immigrant wishes to work with another employer, the new employer must file a new H-1B petition before the immigrant can begin working with the new employer.

Once an immigrant has an H-1B visa, the visa number remains valid for 6 years. So, the immigrant would not be subject to the lottery system if the immigrant changes employers or files an extension of the H-1B visa within 6 years of getting the H-1B visa.

Beware of Fraud
There have been some high profile prosecutions of employment agencies and attorneys who have engaged filing fraudulent H-1B visa petitions. Essentially, these agencies or attorneys claim that for a certain fee they can set you up with an employer who will petition you for an H-1B visa. Beware. If it sounds too good to be true, it probably is. Many hard working and honest immigrants got caught up in these scams only to find themselves cheated out of thousands of dollars and in deportation proceedings.

As I always advise in every article, please consult with a qualified immigration attorney.

Audra R. Behné has a practice dedicated to immigration law and is a member of the American Immigration Lawyers Association and the Los Angeles County Bar Association, Immigration Division. Her main office is located at 14724 Ventura Blvd., 2nd Floor, Sherman Oaks, CA 91403 ● Tel. (818) 881-2155 ● www.audrabehne.com email: audrabehne@aol.com

This article is for informational purposes only and is not meant to provide legal advice in any specific case. Results may vary depending on the facts of a particular case. We make no prediction, warranty or guarantee about the results of any case, nor do we assume any legal liability for the completeness of any information and its impact on the results of any case. Each case is different and results depend on the facts of each case. Consult with and retain if you need legal advice.