USCIS Reaches FY 2009 H-1B Cap

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.

USCIS will carry out the computer-generated random selection process for all cap-subject petitions received. USCIS will select the number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the “advanced degree” exemption limit. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

The agency will conduct the selection process for “advanced degree” exemption petitions first. All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.

This is the first part in a three-part series.

Non-Immigrant Visas – The H-1B Skilled Worker Option

An H-1B visa is a nonimmigrant visa which allows U.S. employers to employ highly skilled temporary workers. H-1B workers are admitted for an initial period of three years, which may be extended for an additional three years. In some cases an extension beyond the six-year limit is allowed.

Basic Requirements

1) The position must be a “specialty occupation”

• An occupation that requires highly skilled specialized knowledge; and

• The position normally requires at least a bachelor’s degree or higher (or its equivalent) in the specialty

2) The potential H-1B employee must specifically meet the requirements of the occupation

• The employee’s degree must be related to the occupation;

• Related experience may be used in place of a degree (3 years of experience equals 1 year of study);

• If the occupation requires a license or professional credentials, such as a doctor, certified public accountant, lawyer etc.) you must already possess the license or credential prior to the employer applying for the H-1B;

3) The employer must have the capability of paying, and must actually pay the prevailing wage (what U.S. workers are paid) and follow the posting requirements.

Procedure

Assuming you meet the requirements above, the potential employer files the Petition for Alien Worker on your behalf. It is highly recommended that the employer files premium processing – which for $1000.00 will give you and your potential employer a response within two weeks. Last year (for fiscal year 2008), the H-1B cap of 65,000 was reached in one (1) day and the H-1B cap of 20,000 for those with master’s degrees or higher was reached in about one (1) month. Some employers such as university, or nonprofit or government research organizations are exempt from this cap.

Obtaining an H-1B is highly competitive and can be a complex process. Due to the scarcity of H-1B numbers available, it is extremely important that the petition is done properly to avoid delays and denials and to avoid violating the Department of Labor’s terms of H-1B employment.

H-1Bs typically require the student to find a company willing to file an H-1B petition, which may not be an easy task. Companies unfamiliar with the process may be reluctant to go through the process. While not common, it is possible for an entrepreneurial student to form his/her own company which can then sponsor the student’s own H-1B. All typical H-1B requirements must be met, but note that a “self-petition” will be carefully scrutinized. This also may not be a practical solution for a student who may not have sufficient funds to open his/her own company. For more information on H-1B for Entrepreneurs, click here.

Later this week, I will discuss other nonimmigrant visa options such as TN visas, L-1 Intracompany Transferee visas, O visas and E Investor visas, and other immigrant visa (green card) options.

When you enter the U.S. on a nonimmigrant visa, such as on a visitor (B), student (F1), temporary worker visa (H-1B; L; E etc.), you are allowed to be present in the U.S. for a specific purpose and for a limited time period.

The time period allowed will typically be stamped by a U.S. immigration inspector after the inspector has examined your passport and visa. The inspector will provide you with a Form I-94 (Arrival/Departure Record) which is normally a white card stapled inside your passport. This record should indicate when you must leave the U.S. When you leave the U.S. you will need to turn in your Form I-94.

It is important not to confuse the validity dates of the underlying visa itself with the date provided on your I-94. For example, having a ten-year tourist visa in your passport does not mean that you can stay in the U.S. for ten (10) years upon a single entry. A typical period of stay provided on a tourist visa is usually six (6) months. After six (6) months, to comply with U.S. immigration laws, you will either need to request an extension of your stay, change status or depart the U.S.

Some nonimmigrants such as F-1 students and diplomats have the abbreviation “D/S” written on their I-94 cards. D/S means “duration of status”, which indicates that person may remain in the U.S. as long as he/she continues a course of studies or continues with required employment.

The Importance of Staying in Status

If you are in the U.S. and you wish to stay longer, you must apply for an extension BEFORE your authorized stay expires. It is extremely important to keep valid status in the U.S. if you wish to be eligible for further immigration benefits such as an extension of your current stay, or changing status to another status. Failure to apply for an extension can have serious consequences and may subject you to removal (deportation).

Eligibility
You may apply to extend your stay if you were lawfully admitted into the United States with a nonimmigrant visa, your nonimmigrant visa status remains valid, and you have not committed any crimes that would make you ineligible. You must apply to extend your status if you wish to stay longer than the date indicated in the lower right-hand corner of your Form I-94 (Arrival-Departure Record). As mentioned earlier, you must submit the application for an extension of stay BEFORE your current authorized stay expires. You must also keep your passport valid for your entire stay in the United States.

You may not apply to extend your stay if you were admitted to the United States in the following visa categories:

• (VWP) – Visa Waiver Program
• D – As a crewman
• C – As an alien in transit or in transit without a visa
• K – As a fiancé of a U.S. citizen or dependent of a fiancé
• S – As an informant (and accompanying family) on terrorism or organized crime

For the following categories of nonimmigrants, your employer will need to file an extension for you:

E – International Traders and Investors
H – Temporary Workers
L – Intracompany Transferees
O – Aliens of Extraordinary Ability
P – Entertainers and Athletes
Q – Participants in International Exchange Programs
R – Religious Workers
TN – Canadians and Mexicans Under NAFTA

If you are in the following nonimmigrant categories, you may file an Application to Extend/Change Nonimmigrant Status and submit any required supporting documents:

A – Diplomatic and other government officials, and their families and employees.
B – Temporary visitors for business or pleasure.
F – Academic Students and their families
G – Representatives to international organizations and their families and employees.
I – Representatives of foreign media and their families
J – Exchange Visitors and their families
M – Vocational Students and their families
N – Parents and children of the people who have been granted special immigrant status because their parents were employed by an international organization in the United States.

Extension of Stay for Spouse and Children

If you are here under a status that requires your employer to file for your extension, then your spouse and child file an Application to Extend/Change Nonimmigrant Status and submit any required supporting documents to extend their stay. It is best to submit both your extension and your family’s extension forms at the same time.

If you are eligible to file for your own extension, you may include your spouse and any unmarried children under the age of 21 in your application if you are all in the same nonimmigrant category. You may also include your spouse or children in your application if they were given derivative nonimmigrant status. This means that your spouse and children were given nonimmigrant visas based on your nonimmigrant status. For instance, if a student is given an F-1 “Academic Student” visa, then the spouse and child are given F-2 “Spouse and Child of an Academic Student” visas.

When to Apply

USCIS recommends that you apply to extend your stay at least 45 days before your authorized stay expires, but the USCIS Service Center must receive your application by the day your authorized stay expires. It is not recommended to wait until the last minute to prepare an application. An attorney who is preparing a filing for you will also need some time to properly advise and prepare an extension request.

Filing Late (Filing after stay has expired)
If you are late filing for an extension and your authorized stay has already expired, you must prove that:

• The delay was due to extraordinary circumstances beyond your control;
• The length of the delay was reasonable;
• You have not done anything else to violate your nonimmigrant status (such as work without USCIS approval);
• You are still a nonimmigrant (This means you are not trying to become a permanent resident of the United States. There are some exceptions.); and
• You are not in formal proceedings to remove (deport) you from the country.

It is not easy to have to provide evidence of the above therefore it is obviously best not to be put in this position in the first place. It is advisable to consult with an attorney if you are in this position.