Susan Perez Immigration Law Blog on Lawyers.com

On April 9, 2010, U.S. Citizenship and Immigration Services (USCIS) announced that it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY 2011) cap. USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap and received approximately 5,600 petitions for individuals with advanced degrees. The cap is the congressionally-mandated limit on the number of workers who can be issued H-1B visas during each fiscal year.  For fiscal year 2011, the cap is 65,000.  Not all H-1B applicants are subject to cap.  The law makes available the first 20,000 H-1B petitions filed on behalf of foreign nationals who have U.S. master’s degrees or higher are exempt from the fiscal year cap.  Those who will be employed by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, by a nonprofit research organization or a government research organization are exempt from the cap.  Also, petitions filed on behalf of foreign nationals who will be performing work or services solely in Guan and/or the Commonwealth of the Northern Marianas Islands (CNMI) are exempt from the cap until December 31, 2014.  Generally, H-1B visa holders seeking to extend status and/or add employers are not subject to the cap.  Those who were previously subjected to the cap are exempt from the cap as well.  USCIS uses “random selection process” or “H-1B lottery” when more than 65,000 H-1B applications are received.  Last year, the cap remained opened until December 21, 2009.  Applications received on this date were subjected to random selection process.

The H-1B program allows employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor's degree or its equivalent. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.  The H-1B nonimmigrant visa category is popular because of its basic feature-- qualification in an occupation that usually requires a college degree.  This can be easily met by a lot of foreign workers especially the Filipinos.  The Filipino culture highly regards education as an important part of life.  A lot of colleges in the Philippines made it to the list of top universities of the world and Asia.  In my experience, a degree from a college or university in the Philippines qualifies for a U.S. bachelor’s degree equivalent.  A foreign-educated applicant needs his/her credentials evaluation by an accredited evaluation agency to determine if his/her foreign degree is equivalent to a U.S. degree.  The law permits a foreign worker to qualify for a specialty occupation based on experience that is equivalent to a bachelor’s degree.  For example, Juan completed a two-year course in computer programming but has ten years work experience in this field.  His work experience may wholly substitute for a U.S. bachelor’s degree. 

To obtain an H-1B visa, a foreign national must first find an employer or sponsor.  The sponsor files the H-1B application through an attorney.  The foreign national cannot file for his or her own H-1B visa.  An H-1B visa is typically valid up to six (6) years and entitles your spouse and children to accompany you and live in the United States.  Unlike the employment-based petition, the employer does not need to publish the job at a newspaper of general circulation.  It is enough that the employer posts the labor certification application at the work place.  An employer may not file and USCIS may not accept H-1B applications earlier than six months in advance of the date of actual need for the beneficiary’s services or training.  That is why the earliest date that an employer can file an H-1B application is April 1, for the following fiscal year, starting October 1.  If the foreign national is in the United States and is seeking to change status to H-1B, the I-94 must valid until October 1.  If the I-94 will expire before October 1 then foreign national needs to extend his or her current status or go back to his or her home country and do consular processing.  To illustrate by example, Elena, a systems analyst with bachelor’s degree in computer science, enters the U.S. on a B-2 or Visitor Visa on March 30, 2010.  She was given six months to stay in the United States or until September 30, 2010.  On July 1, she finds an employer and files for a Change of Status to H-1B.  On August 1, Elena files an extension of her B-2 visa for another six months.  On September 1, Elena receives a Request for Evidence (RFE) on the H-1B case asking her to prove that she has a lawful status on the start date of his employment on October 1, 2010.  She was given until October 15 to respond.  On October 12 , USCIS denies the extension of Elena’s B-2 for failure to prove that she intends to stay in the United States temporarily.  The H-1B is approved but the change of status is denied since she was not in lawful status on October 1, 2010.  Elena needs to go back to her home country before September 30, 2010, and go to the U.S. consulate for interview if she wants to pursue her H-1B visa application.  If the U.S. consulate approves her H-1B application, she can come to the United States on an H-1B visa. 

If you have any questions, please feel welcome to email me at susan@law-usimmigration.com or call (619) 819 -8648 to arrange a telephone consultation. 

San Diego Immigration Attorney Website- http://law-usimmigration.com