20,000 H-1B Work Visas Continue to Be Available

Published: August 15, 2009

With the federal government’s new fiscal year starting on October 1, many in our business and foreign worker communities will be surprised to learn that 20,000 H-1B, temporary work visas continue to be available. In recent years, by the end of the first week of April (when petitions for the coming fiscal year are first accepted), enough filings were received by Citizenship and Immigration Services to exhaust the reduced supply of 65,000 visas (excluding the 20,000 available to those receiving advanced degrees in the US). Now, we are more than four months into the acceptance period for H-1B filings for the upcoming fiscal year, and one third of the supply remains. Clearly the economy is the biggest factor in the reduced demand, but the extent of the diminished demand is surprising to everyone.

So, for those companies and foreign workers who might be interested in starting a relatively straight forward process of facilitating the issuance of an H-1B visa, here are the essentials:

Employer as Petitioner: We start with a job offer. It can be full-time or part-time, and the wage offered has to be at least as high as the “prevailing wage” for the occupation in the geographical location at issue. The company can be big or small, old or new, but the level of scrutiny over the petition will increase the smaller or newer the company. CIS (Citizenship and Immigration Services) likes to have answers to the following: does this company truly have the cash flow to meet the prospective financial obligation to hire this new worker? Does this company truly have a position open in the subject occupation, or is this petition just a way to facilitate the entry of a worker who will join the company in a clerical or ANY role?

Type of Job: In general, it must be a position that typically requires the worker to have completed a university education. So no matter the qualifications of the prospective worker, the employer will have to document that the position at issue is for a “specialty” or “professional” occupation, and not one that merely can be filled by someone with less than a university degree.

H-1B occupations that have been the subject of recently approved petitions filed by my office include: Accountant, IT Manager, Systems Analyst/Software Engineer/Programmer, Engineer – various subspecialties, Physician, Teacher, Scientific Researcher, Physical Therapist, Medical Technologist, Occupational Therapist, , Rehabilitation Coordinator, Director of Nursing, Quality Assurance Manager, Operations Manager, Financial Analyst, Marketing Manager, Forensic Consultant, Lawyer, Media Manager, Marketing Manager, Graphic Designer, Architect.

The initial period of admission is usually for three years, and extendable for an additional three years, for a total of six years. The 6-year period will be more than sufficient for the permanent resident (Green Card) process to be completed, if the parties are interested.

The Employee’s Qualifications: In most cases the prospective worker must present evidence that he/she received a university degree and that the degree is the equivalent of a 4-year university degree in the U.S., as reflected in an equivalency report issued by a respected evaluation company. The worker usually is required to document that their degree’s concentration or major relates to the position being offered, although sometimes the lack of formal coursework can be supplemented with documentation confirming extensive experience in the field at issue.

In some cases a prospective worker who has not completed their degree at all may be able to demonstrate that they have attained the equivalence of a university degree by supplementing their lack of formal education with documentation confirming extensive progressive experience in the profession at issue.

Other Requirements: Petitioning employers are subject to a variety of other simple obligations such as posting notices at the work site location that an H-1B petition was filed, maintaining a special H-1B personnel file in compliance with straightforward immigration and labor regulations and promising to pay the employee’s travel costs to return home if the job does not work out. Some of the positions that are subject to state licensure requirements (e.g. Physical Therapist, Physicians, Architect) may be subject to additional hurdles in the process, but by no means are such hurdles insurmountable for purposes of facilitating issuance of the H-1B.

Processing time: If “Premium Processing” can be afforded for an extra $1,000, CIS may issue a decision on the petition in less than two weeks. Otherwise, processing time is usually 60 to 90 days.

What is not required: The H-1B petition is not viewed as a contract, with the employment at issue being “at will”. Employers are not required to document the unavailability of U.S. workers, such as by having to advertise the position or otherwise extend recruitment efforts to find U.S. workers.

How quickly the 20,000 allotment will be consumed is anyone’s guess. What is certain though, is that the process allows interested employers and qualified foreign workers to facilitate work visa issuance in a fairly uncomplicated, straight-forward manner.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois