What is an H-1B?
The H-1B nonimmigrant visa category, which is by far the most sought-after work visa category, allows U.S. employers to hire foreign workers for “specialized” positions. To qualify for an H-1B, an H-1B worker must have a relevant bachelor’s degree or equivalent, and his/her H-1B position must be a professional one requiring a bachelor’s or higher degree.
The “Cap” Issue
Congress has set the number of available H-1B’s at 65,000 per fiscal year (1,400 visas for nationals of Chile and 5,400 for nationals of Singapore are initially set aside). As of May, 2005, an additional 20,000 H-1B visa numbers per year have been created specifically for foreign workers with a US master’s or higher degree. This numerical limitation is commonly called a “cap.” Certain H-1B employers are exempt from this annual cap, however. Those are colleges/universities, affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations. Furthermore, foreign workers who have had H-1B petition approvals within the last 6 years are generally exempt from the cap, with limited exceptions.
Why the Rush?
The governmental Fiscal Year begins on October 1, and 65,000 + 20,000 H-1B visa numbers become available on October 1 each year. However, due to the high demand for H-1B visa numbers, the United States Citizenship and Immigration Services (USCIS) now accepts employers’ H-1B applications starting April 1 of each year. Last April, the USCIS received approximately 130,000 H-1B applications for the 65,000 slots on the first date of the Fiscal Year 2008 application window period. In other words, all of 65,000 H-1B visa numbers (except for those reserved for nationals of Singapore and Chile) disappeared on DAY ONE of the application period. Worse yet, only 50% of such applications were eventually selected for adjudication by the computer-generated lottery system. Applicants with a US master’s degree fared slightly better, having an additional one month before their cap was reached on April 30.
As of today, the USCIS has not published new policy directives with respect to this year’s H-1B filing. Under the same filing system, it is expected that this year the H-1B competition may be as fierce as, if not worse than, the last year.
If you are a US employer wishing to employ an eligible foreign professional worker in the H-1B visa category, and if it is not a cap exempt organization, it is essential that an H-1B petition be filed with the USCIS on April 1, and no later than April 1. (Otherwise, the next chance to submit an H-1B petition for the individual may not be until April 1, 2009 for H-1B employment starting October 1, 2009.)
Written by Saiko McIvor.
Originally appeared in Dorsey's Employment Law Update