Time to Prepare H-1B Applications for Fiscal Year 2012

Recently, our office has been contacted by numerous people inquiring about H-1B visa petitions for fiscal year 2012.  As you may know, April 1, 2012 is the first date for filing H-1Bs and that day is around the corner. It is very important to note that the H-1B program has an annual cap of 65,000, so it is important to file your H-1B visa on April 1, 2011 promptly or soon after.  The start date for the H-1B fiscal year 2012 is October 1, 2011.

Introduction – What is H-1B Visa?

The H-1B program is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.  The USCIS uses information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 14 through 15) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”).  Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher (Master-Cap).

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. The cap eligible petitions are the number of petitions that USCIS has accepted for this particular type of cap.  It includes cases that have been approved or are still pending.  It does not include petitions that have been denied.

Pre-requisite – You need the following for H-1B visa petitions

In order to file your H-1B visa petition, you need to consult your employer first to find out whether they will petition on your behalf.  Immigration law mandates that the employer files the H-1B visa petitions for the foreign employee. Thus, self-petitions for H-1Bs are not available.  Moreover, your employer must pay equal to or more than the determined prevailing wage for your occupation.  Lastly, your employer needs to pay the filing fee for the visa petition which ranges from $1575 to $3550 (assuming premium processing services + more than 25 employees).  Legal fees for lawyers are separate.

Once your employer decides to file the H-1B visa petition, the Labor Condition Application (LCA) should be filed to the Department of Labor. Without the certified LCA, you cannot file the H-1B visa petition. The LCA normally takes 10 to 14 business days for approval, so you need to give yourself two weeks before you file the H-1B.

What kind of documents do you and your employer need to provide?

Good supporting documentation is key for successful H-1B visa petitions.  The following list of may vary depending on the beneficiary’s job, his credentials and the type of business the employer is in.

INFORMATION REGARDING EMPLOYER/PETITIONER

• Employer’s tax info/record
• Company website printout
• Any information regarding the employer/petitioner

EVIDENCE PERTAINING TO THE BENEFICIARY’S EDUCATION AND QUALIFICATIONS

• Copy of Beneficiary’s Degree
• Copy of membership card if you are affiliated with any professional associations
• Any certificate which demonstrates that you are qualified for this “specialty occupation.”

EVIDENCE PERTAINING TO THE PROFERRED POSITION

• Detailed employment letter that explains that the proffered position is a “specialty occupation.”

Special Notes

If you currently hold a J-1 Visa in the United States, subject to the two-year foreign residency requirement, and want to change your status to H-1B, you need to get a waiver before you file your H-1B visa.  If you have a question with regard to J-1 waiver, please read our other blog articles for that topic.

If you are currently working for an employer under the OPT program, and that employer wants to file the H-1B visa petition for you, you do not have to leave the United States even if your OPT expires before October 1, 2011.  Under the “Cap-Gap” rule, your OPT can be extended until September 30, 2011 as long as your OPT does not expire before April 1, 2011.

Our firm has vast experience in H-1B cases, and we have obtained approvals for positions ranging from attorneys, computer systems analysts, sales managers, web graphic designers, physicians etc. Feel free to contact us at 1.800.898.7180 or email us at jp@sarmientoimmigration.com for questions.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately.