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65,000 H-1B Visas to be Released on April 1 

March could be the best month of the year in South Florida.  It marks the start of spring, and down here that means, among other things, beautiful weather, the winter music conference, Ultra Music Festival, spring training baseball, the Nasdaq tennis tournament, and vacationing spring breakers.  But, nationwide, it also means the H-1B season is right around the corner.     

Every year, on April 1, there are 65,000 H-1B visas released for an employment start date of October 1.  Of the visas, 5,800 are specifically allocated to citizens of Singapore and Chile.  An additional 20,000 visas are available to foreign nationals who have earned a Masters or higher degree from a U.S. graduate school.  Finally, some employers are exempt from the H-1B cap, such as institutions of higher education, non-profit research organizations, and governmental research organizations.  

To obtain an H-1B visa, a foreign national must be coming to work in a "specialty occupation," which is defined as a job that at a minimum requires attainment of a bachelor or higher degree, or its equivalent, for entry into the position.  A specialty occupation is one that also requires the theoretical and practical application of a body of highly specialized knowledge.  Some of the jobs that can qualify as specialty occupations include engineers, market research analysts, construction managers, accountants, computer programmers, financial analysts, teachers, human resource managers, management analysts, statisticians, and sales engineers, to name a few.

To work in a specialty occupation, the foreign national must meet the minimum requirements for the position by possessing a bachelor or higher degree, or its equivalent, in a specialty related to the occupation.  With respect to equivalency, a foreign national may qualify to work in the specialty occupation through a combination of education, specialized training, and/or experience in a related field.  U.S. Citizenship and Immigration Services ("USCIS") will count three (3) years of relevant experience as one (1) year of education.      

Procedurally, an employer must submit an I-129 petition with supporting documentation to USCIS to classify a foreign national as an H-1B employee.  If approved, the H-1B employment will be authorized for an initial period of three years with the sponsoring company, and can be extended for an additional three years.  After six years in H-1B status, the foreign national must return abroad for one year before he or she may be readmitted to the U.S. in H-1B status.  However, an H-1B employee may extend status for a seventh year and beyond if, upon or after expiration of the six year period, a PERM or other employment-based green card process has been pending on behalf of the foreign national for at least 365 days.

Dependent spouses and children under 21 years old of H-1B employees may apply for and obtain H-4 status to remain in the U.S. lawfully while the principal H-1B employee maintains his or her H-1B status. 

Once granted H-1B status, a foreign national may change employers and continue to maintain legal status.  The H-1B employee is authorized to work for the new

 Proposed H-1B Rule Requires Employer Registration 

On March 2, U.S. Citizenship and Immigration Services (USCIS) announced a proposed rule that amends the current process used by U.S. employers for filing H1-B petitions for foreign workers.  Under the proposed rule, employers would have to register electronically with USCIS before filing an H-1B petition.  The employer would be required to register during a designated registration period, which would begin before April 1, the first day H-1B visas become available each year.  USCIS has indicated the registration process would take 30 minutes.    

H1-B visas are subject to a numerical limit of 65,000 visas each fiscal year.  The first 20,000 petitions filed on behalf of individuals with a master's degree or higher are exempt from this cap.  The proposed rule would apply to companies filing H1-B petitions subject to either the 65,000 cap or the 20,000 exemption.   

In any given year, if USCIS anticipates the cap will be reached before April 1, it will close the registration period and randomly select enough timely filed registrations to meet the cap.  USCIS will then permit only those companies whose registrations are selected to file H-1B petitions for the prospective foreign national employee named in the registration.  If USCIS anticipates the cap will not be reached prior to April 1, then the registration period will remain open and those companies that have registered will be permitted to file H-1B petitions. 

The goal of the regulation is to minimize the expense incurred by companies that are involved with the H1-B process.  By pre-selecting the number of registrations allowed, USCIS hopes to reduce the expense to employers of preparing and filing H1-B petitions that are ultimately rejected due to the cap.  USCIS estimates that this rule could save U.S businesses more than $23 million over the next 10 years.

The proposed regulation will not affect the upcoming H-1B season for fiscal year 2012 which begins on April 1, 2011.  USCIS has opened a 60-day comment period to allow businesses and the general public to comment on the proposed regulation on or before May 2, 2011.  See the proposed H-1B registration rule for instructions on how to comment.