Getting Geared For The H-1B Cap Filing Season:

Tips To Succeed In The H1B Cap Challenge

Introduction

H-1B visa is utilized by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields. As one of the primary requisites of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) requires U.S. employers to meet specific labor conditions. This is to ensure that American workers are not adversely impacted by the employment of a foreign worker and also that the DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.

The current law has a quota of only 65,000 H-1B visas available each year. When the USCIS believes that it has received sufficient number of applications to reach the particular year’s cap, it stops receiving H-1B applications. It has been interesting to note how the numbers have just vanished over the past few years even before the start of the actual fiscal year for which the filings are done. For FY2005, the cap was reached on October 1, 2004. For FY2006 the cap was reached much sooner, on August 10, 2005, and last year (i.e. for FY2007), the numbers were over by 26th May 2006. The estimation is that the cap would reach much before for this fiscal year.

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Lack of proper planning and on-time filing for an employee before the cap is reached, can result in you having to wait until the next year to file an H-1B petition. In such cases employers will only be left with the option to evaluate and utilize alternatives to the H-1B category, which may be used to ‘bridge the cap’ until October 1st if you have missed the H-1B bus for that particular year.

Petitions filed on behalf of current H-1B workers do not count towards the congressionally mandated H-1B cap. The purpose of the petition could be extension of stay, change in the terms of current employment, change of employers by current H-1B workers and H-1B workers seeking to work concurrently in a second H-1B position.

Unless there is a change in law, USCIS allocates 20,000 cap exemptions annually for persons with advanced U.S. degrees and those seeking jobs in institutions of higher education or related or affiliated non-profit entities, or at non-profit research organizations or governmental research organizations. H-1B cap exemptions depend on an employer fitting within a particular category and fulfilling the requisites set forth under the law. An employer isn’t required to apply for the exemption with the USCIS or any other government agency.

With the Democrat-controlled Congress taking office last week and H-1B visas still being the focal point of debate, the anticipated rat race will stall when the cap will be reached presumably in about a month. We at VisaPro wanted to get a first hand insight into the H-1B back-end preparation that has gathered full momentum in companies from a one-man start-up firm to a multinational company. Following is how medium to large sized companies perceive the H-1B cap:

Large sized companies: The larger companies processing 50 to100 H-1Bs every year are looking towards having a better strategy planned up this year as a precautionary measure to surpass the rejections for their petitions last year. The companies plan to start all their paper work by February in order to make sure to post the petition to the USCIS well before time. The plan is outlined in such a manner that the petition gets filed on 1st of April 2007. The companies see an absolute need to ascertain their staffing requirements and plan the filing of H-1B petitions for employees who they need to employ during the next fiscal year. Many have seeked assistance from experienced attorneys or law firms to ensure they don’t miss the H-1B bandwagon yet again!

Medium sized companies: The medium sized companies process nearly 10 to15 H-1B visas every year. Ineffective planning and late filing was the prime cause for these companies not receiving the required H-1B visas. Many of the companies filed the petitions in 1st week of June and hence, lost out on the H-1Bs. We were made to understand by them that this year their strategy would be better and much more efficient. The companies plan to start preparing for the H-1B visas and also seek help from law firms, if necessary, in understanding the document requisites and visa procedure. However, we observed that small to medium companies and start-ups didn’t seem to be getting jittery about the H-1B cap being reached in less than a month as predicted this time.

With the H-1B issues involved, one does need to plan for the next fiscal year in advance. There are several potential immigration strategies to survive the H-1B cap and one of them is filing as soon as the quota opens. Employers need to devise a suitable strategy for hiring a foreign national at least six to eight months in advance and plan the filing accordingly. This may still not be a solution when the need of a foreign national in the U.S. is immediate and emergent. For a detail on alternative visa options for those who might still be left out this year, please review our Immigration Article on H-1B Cap.


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VisaPro has successfully handled H-1B petitions for a variety of clients ranging from small companies to multinational firms. Please feel free to contact us to discuss the immigration needs of your organization and help you effectively with your H-1B processing. Our experienced Immigration Attorneys could help you devise an appropriate strategy for employing foreign nationals or transferring employees from your overseas offices to your U.S. entity by filing for an H-1B.


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