| Morse, Barnes-Brown & Pendleton's Immigration Alert, March 2011
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FY 2012 H-1B SEASON TO OPEN ON APRIL 1st The H-1B visa is the standard working visa used by foreign nationals to work in the United States with a U.S. employer. The H-1B “specialty worker” visa is available only to foreign nationals who have obtained a job offer in a position that customarily requires someone with a Bachelor’s degree. A foreign degree that is deemed the equivalent of a U.S. Bachelor’s degree will satisfy this requirement as will a combination of work experience and education that is deemed to be equivalent to a Bachelor’s degree. H-1B work authorized status may be requested for an initial period of up to 3 years and may be extended thereafter for an additional period of up to 3 years. With a few exceptions, foreign nationals who have completed 6 years of time in the United States in H-1B status will be required to return to their home country for at least one full year before becoming eligible again to receive H-1B status. H-1B visas are made available in a limited number (the “H-1B cap”) on October 1st of each year, the beginning of the fiscal year of the U.S. Citizenship & Immigration Services (“CIS”). Applications for the current fiscal year tranches of H-1B visas can be made starting April 1st. In years prior to 2009, more applications were received in the first several days of April for H-1B visas than the number available – as a result filed applications were selected on a lottery basis and only a limited number of applicants were able to obtain H-1B visas. In 2009 and 2010, with the global recession, the H-1B cap was not reached until late in the calendar year. While we expect that in 2011 the H-1B cap will not be reached for several months after April 1st, we cannot be certain. As a result, we are advising all employers who expect to sponsor an employee for an H-1B visa to plan to file in the early part of April of 2011. Employees who are subject to the H-1B cap are those who have not previously held H-1B status and who have not been counted against the H-1B cap within the past six years. Within this group typically are:
Note that the H-1B cap does not apply to a foreign national who is currently in the U.S. in H-1B status and who seeks to extend his H-1B status with his original sponsoring employer or to switch the sponsorship of his H-1B visa to a new employer. A few important points to note: 1. H-1Bs are given out each year in two primary tranches - 20,000 visas for foreign nationals with a U.S. earned Master's (or higher) degree and an additional 65,000 visas for foreign nationals who qualify generally for the H-1B (by having a U.S. or foreign Bachelor’s degree or a combination of education and experience that is equivalent to a Bachelor’s degree or higher). Note that 6,800 H-1B1 visas are specifically reserved from the 65,000 non-U.S. Master’s tranche to nationals of Singapore and Chile and the unused H-1B1 visas from this reserved number are added back to the next fiscal year’s 65,000 quota. 2. In years prior to 2009, when more applications were received by CIS within the first few days of April, CIS announced that it would accept all H-1B petitions received in both tranches during the first 7 days of April. In other words, it would keep both tranches open for the first week of the month. The CIS then held multi-tier lotteries, first for cases in the Master’s degree tranche and then a second lottery for the general tranche plus all those in the Master’s degree tranche who had not been selected. In the unlikely event that enough cases are received this year in the first few weeks of April to exceed the cap, we assume that the CIS will follow this same procedure. 3. The CIS takes the position that the foreign national’s eligibility for H-1B status must be established at the time of filing. Thus, if the foreign national is hoping to apply in the U.S. Master’s degree tranche but has not received a U.S. Master’s degree on or before April 1st, then the candidate is not qualified for the H-1B based on the U.S. Master’s degree. This person would either have to file for an H-1B in the 58,200 visa general tranche based on a foreign or U.S. Bachelor’s degree or wait until the Master’s degree is conferred to file in the U.S. Master’s degree tranche. While we don’t expect that the H-1B tranches will be closed within the first several weeks of April, we cannot guarantee it and so a discussion would have to be had with you and with the specific employee as to the best way to proceed. 4. Most commonly, F-1 students have a period of Optional Practical Training (“OPT”) granted as part of their F-1 student status that runs from their date of graduation (May or June) for 1 year. F-1 student employees who are on OPT will commonly have their OPT expire in May or June. If the H-1B visa petition filed for such an F-1 student is accepted for filing before their OPT grant expires, then their OPT employment authorization is automatically extended until October 1st, when their H-1B status is activated. 5. F-1 students who are graduating in a program that is designated to be within the Sciences, Technology, Engineering or Mathematics (a “STEM”) designated program may be eligible for a 17 month extension of their OPT after the initial 12 month period has run. F-1 students holding STEM OPT may only be employed with a U.S. employer that is registered with E-Verify. F-1 students who have graduated in STEM designated programs may be able to take advantage of up to 29 months of employment authorization after graduation in OPT status and thus have several opportunities to apply for an H-1B visa. Although the odds of the H-1B caps being reached early in April this year are not high, there can be no guarantee that they won’t. Given this uncertainty employers should consider which of their foreign employees (or prospective employees to whom they have made offers) will require an H-1B this year. The rules (as outlined briefly above) are complex and virtually every case is different and requires analysis. Collecting the necessary data and beginning a discussion with your immigration legal counsel as early as possible will increase to the greatest extent possible your ability to maintain the legal status and work authorization of your foreign employees. |
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Morse, Barnes-Brown & Pendleton, P.C. Employment & Immigration
Practice Group |
