Published November 24, 2015
It seemed like just yesterday U.S. employers and prospective foreign workers were competing for a chance at one or more of the 85,000 H-1B visas available each fiscal year, which starts on October 1 and ends on September 30. So even though we have not yet reached the calendar year 2016, we are indeed talking about the US government’s 2017 fiscal year, which starts October 1, 2016 and ends September 30, 2017.
In a little over 4 months, the magic date of April 1, 2016 arrives, the first date the U.S. Department of Homeland Security/Citizenship and Immigration Services will accept H-1B petitions that will allow for an October 1, 2016 H-1B work visa start date. To say that the supply of H-1B visas gets sucked up quickly, is a huge understatement, with the demand for one of 85,000 H-1B visa spots outnumbering the supply by a 3 to 1 ratio – and that is just from the first week of filings DHS/CIS receives. So, the first rule for interested parties to take note of is, get prepared starting NOW so that the filing can be filed with DHS/CIS on April 1, 2016. And no, NOW is not too early.
Of the 85,000 visa spots available, 65,000 visas are designated as part of the general supply and 20,000 for workers who have been awarded an advanced degree from a U.S. university.
In general, as stated, an H-1B petition, assuming it overcomes the 3 to 1 odds against it even being accepted for consideration, allows a foreign worker to start his/her position in the U.S. as of the ensuing October.
Toward preparation, one of the first steps to be taken is obtaining approval of a Labor Condition Application from the U.S. Department of Labor. No, this is not a process involving proving the unavailability of U.S. workers. Instead, it involves Department of Labor’s acceptance and approval of an employer’s online attestation wherein the employer promises among other things, the foreign worker will be paid no less than the “prevailing wage” for the position and geographic region at issue, and that the wage, conditions and benefits will be no less than what U.S. workers at the place of employment receive.
As to the other basic H-1B eligibility requirements:
1) The Position – the petition must be based on a bona fide job offer in a “specialty occupation”, usually defined as an occupation where the attainment of a university degree is a minimum requirement. To be sure, there are other ways to prove a specialty occupation, but meeting this definition is the most straight forward way.
2) The Worker – the prospective employee must possess a university degree, or equivalent with a focus in a field of study/expertise related to the position offered. Sometimes the right type of work experience can substitute for what is lacking in terms of a worker’s educational background.
3) The Employer – generally, the employer should be a financially solid established one, or a well funded start up. The smaller the company, the more scrutiny the petition will receive. How will the company afford the salary for this worker? Does this employer really intend on employing the worker in a specialty role, or in a lesser role? These are examples of the types of concerns DHS/CIS have when it comes to smaller or financially struggling companies.
In what situations are the company or position exempt from the limitations of this H-1B cap?
Positions with a government agency, a not-for-profit organization focused on research or a not-for-profit organization affiliated with an institution of higher learning (e.g. university) are among the type of jobs that are not subject to the 85,0000 visa limit discussed above. Further, H-1B extensions for previously approved H-1B positions are exempt from the H-1B cap.
In sum, the first rule for maximizing the chances of obtaining approval of an H-1B petition, is to start preparations early.
PUBLISHED November 24, 2015– “IMMIGRATION LAW FORUM” Copyright © 2015, By Law Offices of Richard Hanus, Chicago, Illinois