H-1B Visas: Make Sure you Get your Visa for 2012
---Be among the first to file---
The H-1B visas are subject to a
65,000 numerical limitation cap per year. There is an additional 20,000 visas
set aside for those applicants with Advanced Degrees for those who have
obtained a Masters Degree from a US University. There are also cap-exempt
petitions available.
Here is a summary of how to
obtain the approval of the H-1B petition.
When does the
annual cap start?
The fiscal year for the US
government starts on October 1st of each year. So, on October 1, 2012, there
will be 65,000 visas available for the H-1B category, and 20,000 visas for the
Advanced Degree applicants.
When is the
earliest date you can file the H-1B petition?
The USCIS accepts petitions for
the upcoming fiscal year starting on April 1, 2012. On this date, petitions for
H-1B status can be filed for employment cases that will be effective on October
1, 2012
Which are the
Cap-exempt petitions?
New H-1B petitions
are exempt from the cap if the applicant will work at institutions of higher
education or similar nonprofit entities, or at nonprofit research organizations
or governmental research organizations. These petitions can be approved at any
time since there is no limit to the number of H1-B visas available.
Petitions for current
H-1B workers are also cap exempt in cases such as: Extensions of stay
of current H1B worker; Changes to petitions of employment for current
H1B visa holders; Current H1B workers that wish to work concurrently in another
second H1B position.
What is the H-1B
category?
The H-1B visa is defined as a
visa that is obtained by foreign worker who is hired for employment by a U.S. business
in specialty occupations that require theoretical or technical expertise in
specialized fields, such as scientists, engineers, computer programmers,
fashion models, accountants, as well as many other professional positions.
What are the
requirements to qualify for an H1B visa?
You must
have one of the following:
1) A Bachelor's degree or Masters Degree (or the foreign equivalent degree from
your Country), OR
2) 12 years work experience, OR
3) A combination of education plus professional work experience.
The H1B visa requirements are the same for everyone from all countries.
Why is it important
to file as soon as possible for the H-1B?
In November 22, 2011, USCIS
received a sufficient number of petitions to reach the statutory cap for FY
2012. By this date, the USCIS had also received more than 20,000 H-1B petitions
on behalf of persons under the advanced degree exemption.
Therefore, as of November 22,
2011, the USCIS rejected all petitions for new H-1B specialty occupation
workers that were looking an employment date in 2012. No new H-1B petition could
be approved until the new fiscal year starts on October 1, 2012.
How to Ensure USCIS Considers Your Petition Properly Filed
Petitions not subject to the cap
numerical limitations will be continued to be accepted by USCIS. As stated
above, these petitions include: H-1B amended petitions, H-1B extensions for
individuals who have already been counted against the cap within the last six
years, DOD petitions and Chile/Singapore H-1B1 petitions requesting an
employment start date in FY 2012.
Not only is it important to file
as early as possible. But it is
essential that the petition be properly filed:
· Make sure that all sections of
the Form I-129 petition are properly completed, including the H Classification
Supplement to Form I-129 and the H-1B Data Collection and Filing Fee Exemption
Supplement
o Original signatures, preferably
in blue ink, are required.
· All petitions must be accompanied
with a check or money order for the correct fee amount.
· All required documentation and
evidence must be submitted with the petition at the time of filing to ensure
timely processing.
What documents are
required with the Petition?
Among the documents and evidence required with the
initial submission of the petition are the following:
Labor
Condition Application (LCA)
A certified Department of Labor
Form ETA 9035 (Labor Condition Attestation) is required at the time of filing
your petition. This requires a Prevailing Wage Determination to determine what the
current wage for the position is. This determination is provided by the State
Employment Security Agency.
Evidence
of Beneficiary’s Educational Background
Evidence of the beneficiary’s
educational degree is mandatory. If the degree is from a foreign educational
institution, an equivalency report must be included certifying the foreign
credentials evaluation to US educational standards. If the qualifications are
based on a combination of education and experience, there must be an evaluation
from an accredited source, substantiating this evidence in relation to the
professional position that has been offered by the US employer.
Evidence of the Job Offer
There must be
sufficient evidence to demonstrate de authenticity of the job offer. Among the
evidence to be included are: documentation concerning the operations of the US
employer, the professional nature of the duties of the position, and the
viability of the employer the pay the wages offered.
Procedural Issues:
Where to Mail Your H-1B Petition:
The petition must be filed at the
correct USCIS Service Center depending on the jurisdiction of the H-1B
beneficiary’s work location.
It is indispensable
that the filing instructions
be read very carefully. If you file your petition incorrectly, it will be
rejected.
Filing Fees:
The following fees may be
required with an H-1B petition:
Current Base filing fee [as of
February 2012]:
· $325
American Competitiveness in the
Workforce Fee [as of February 2012]
· $750 for employers with 1 to 25
full-time equivalent employees, unless exempt
· $1,500 for employers with 26 or
more full-time equivalent employees, unless exempt
Fraud Prevention and Detection
Fee [as of February 2012]
· $500 to be submitted with a
request for initial H-1B status or with a request for a beneficiary already in
H-1B status to change employers (does not apply to Chile/Singapore H-1B1
petitions)
Premium Processing
Fee [as of February 2012]
· $1,225 if you wish to
expedite the application process to 15 days or less
H1B Visa Application Process
Here is a summary of the
H1-B Visa Process:
1.
Offer and Acceptance between
the US employer and the foreign worker concerning the exact duties of the
position; the exact dates of employment; the salary to be paid for the
performance of the position.
2.
The 'Prevailing Wage' Determination:
The
prevailing wage is determined by the State Employment Security Agency on a
special form in which the US employer must specify the duties, education,
skills and experience required to perform the job. The actual wage is
determined by comparing other workers in the same positions with the same level
of experience. The employer must pay the
higher wage.
3.
The petitioning company
must also post notices at two conspicuous places at their business for 10 days
or provide notice of the filing to the collective bargaining representative for
their employees.
4.
Labor Certification
Application (LCA).
This is
a form filed with the Department of Labor [DOL]. It contains information about the US employer,
who is the H-1B petitioner. In this form, the petitioner agrees to pay the
higher of the two wages, that the employment of this individual will not
adversely affect the conditions of other workers and that there is no strike
for their occupation at the workplace. In addition, the H-1B petitioner must
attest that they will offer H1B employee the same benefits as their other
workers. This includes health, life, medical, retirement, stock options and
bonuses. When this is approved by the DOL, a certified copy is sent to the
petitioner in order to include it with the H-1B filing.
5.
H-1B Petition:
The case can now be prepared with all the forms and supporting evidence
to be filed in the appropriate USCIS Service office.
The filing must include
the I-129 forms, fees, education & experience evaluation & documents, documentation
about the employee’s training, professional memberships, curriculum vitae,
employment contract, position description, evidence regarding the nature and
scope of the business, financial documentation to show ability to pay the wages
offered, and other supporting documents, as needed. Please note that all
documents must be in English or include an English translation.
6.
Filing of the H-1B
petition and issuance of the filing receipt:
Once
the case is received at the USCIS Service Center, a receipt is generated with a
specific case number. This receipt will
also state the approximate processing times and general information about the
petitioner and foreign worker. This is the official confirmation that the case
is in the adjudication process. Processing
times vary depending upon the USCIS Service Center. Premium processing ensures
a processing period of 15 days or less. If not, a case processed through the
regular process, could take anywhere between 30-180 days. Employment cannot
begin until the USCIS has approved the case and the employee has received the
H-1B visa at the US Consulate abroad or has been granted change of status by
the USCIS.
7.
Adjudication and Petition
Approval
Generally a case will be
approved within the designated time-frame indicated on the USCIS receipt. During
the adjudication process, the USCIS could request additional evidence and a
detailed notice is sent describing what additional documentation is required and
the time limit for its submission. If everything is in order, an approval
notice (Form I-797) is issued to the petitioner. This I-797 shows dates of
validity for the foreign worker to work in H-1B status for the petitioner.
8.
The H-1B visa beneficiary
can now apply for his/her visa at the US Consulate abroad. Likewise, the beneficiary’s spouse and
children under the age of 21 may also apply for the appropriate visa [H-4] to
enter the US with the principal beneficiary.
Visa processing times vary depending on the Consulate. Once the
passports have the valid H-1B or H-4 (for the accompanying family members) visa
stamp, the foreign employee and the family may enter the U.S. in ‘H’ status.
CONCLUSION:
If you are interested in working in the US on or
about October 2012 and the H-1B visa is the appropriate classification, start
getting everything ready now. Based on
results of previous years, the H-1B category is extremely popular and the
annual cap is filled quite quickly. Your
goal should be to file as early as possible to make sure your case is in the H-1B
queue before the cap is reached. The earliest date you can submit the case is
April 1, 2012 for an employment start date of October 1, 2012.
For additional information or consultation, please
contact our office.
