On April 1, 2007, the United States Citizenship and Immigration Services (“USCIS”) will begin accepting H-1B visa petitions for Fiscal Year 2008 (October 1, 2007 - September 30, 2008). As you may know, there is a quota on H-1B visas issued each fiscal year. Currently, the federal government issues only 65,000 of these visas each fiscal year, with 6,800 initially reserved for citizens of Chile and Singapore under free trade agreements with those countries. These 6,800 go back to the general pool if they are not exhausted by the time the cap nears completion. In addition, there is a quota of 20,000 visas allocated to candidates possessing U.S. master’s degrees and higher.
It is very important to note that the H-1B cap has been exhausted at an increasingly quick rate in the past few years. Last year, the H-1B visa cap for candidates with the equivalent of a U.S. bachelor’s degree was exhausted in less than two months on May 26, 2006. The H-1B cap for candidates possessing a U.S. master’s degree or higher was exhausted on July 26, 2006. Therefore, it is imperative that all documentation and information relevant to your candidate’s visa petition be organized and submitted as soon as possible.
An H-1B is a nonimmigrant visa that allows companies and universities to temporarily employ foreign workers who have the equivalent of a U.S. bachelor’s degree. H-1B employees are temporarily employed in a job category defined by the USCIS as a “specialty occupation.” A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. Common examples of such specialty occupations include financial analysts, software engineers and market research analysts. Please note that there must be a direct connection between the candidate’s educational background to his/her proposed job duties. Without such a clear connection, the visa petition will be in danger of being rejected by the USCIS.
H-1B visas have a validity of six years. However, these visas can be extended beyond the six-year limit if the employer chooses to file for permanent residency on behalf of the employee. The employer is limited to requesting a maximum of three years per visa petition.
There are two methods of filing for an H-1B visa petition. If the candidate is currently in the United States and would like to file for an H-1B, a change of status petition may be filed on his/her behalf. A change of status petition would require the candidate to remain in the United States while his/her petition is pending with the USCIS. Alternatively, the employer can file an H-1B petition while the candidate is stationed abroad. The petition would be filed by the USCIS and upon approval, the candidate would present the H-1B Approval Notice (Form I-797) to a U.S. consulate or embassy abroad during his/her nonimmigrant visa appointment in order to be issued an H-1B visa in his/her passport to enter the United States for temporary employment. Similarly, if the beneficiary of a change of status petition wanted to leave the country and return to work in the United States, he/she would also need to file a formal nonimmigrant visa application at a U.S. consulate or embassy abroad before re-entering the United States.
We at Alston & Bird feel that to meet any staffing needs involving foreign employees, you will need to start the application process now. This will help ensure that all petitions are ready for filing on April 1, 2007, the first date the USCIS will accept these petitions. To process your employee’s H-1B visa petition, the following documentation and information will be needed:
1. Copies of the candidate’s educational documentation
2. Copies of the candidate’s resume
3. Copies of the candidate’s passport
4. Copies of the candidate’s visa and I-94 card (if applicable)
5. Copies of the candidate’s I-20 Forms (if applicable)
6. Copies of the candidate’s previous I-797 Forms (if applicable)
7. Copies of the candidate’s employment verification letters from previous employers (if applicable)
8. Official job title for candidate’s offered position
9. Exact annual salary for candidate’s offered position
10. Detailed job description for candidate’s offered position, including work location
11. Information about the company (i.e., annual report, financial statements)
12. Name and title of the signatory of the visa petition