How Valentini Law Offices Can Benefit You: We welcome both employers and employees to contact us to discuss immigration options, including but not limited to H-1B visas for skilled workers, that best suit your unique situation. For employers, we come up with the fastest way to bring foreign hires to the US. For employees, we devise a strategy that would allow them to advance their career in the US while keeping the door open for eventual transition to permanent residency.
What is an H-1B Visa?
The H-1B visa is a non-immigrant visa that allows a qualified alien worker with a minimum of a bachelor’s degree to temporarily (up to 6 years) be employed in the US by a sponsoring employer. A qualified alien worker can bring his dependants (spouse and children) to the US. Examples of workers we’ve successfully represented in H-1B applications include computer programmers, scientists, researchers, engineers, architects, lawyers, physical therapists, economists, financial analysts and fashion designers.
Schedule a consultation with a New York H-1b lawyer Valentini Law Offices, PLLC phone: (212) 213-8275 61 Broadway, Suite 2505, New York, NY 10006 (by appointment only)
To qualify for an H-1B visa, an alien worker can be employed either part-time or full-time. It is not a violation of alien worker’s non-immigrant status to be on vacation, on sick, maternity or paternity leave. An alien worker on an H-1B visa may travel outside the US, for business and pleasure, and safely re-enter the country.
LCA as an Integral Part of an H-1B Application
The process of applying for H-1B status is very complex and best handled by an immigration lawyer. An H-1B application starts with a labor condition application (LCA), which must be certified by the Department of Labor. LCAs are currently being accepted electronically and may be submitted by an attorney on behalf of the petitioning employer. LCAs are no longer being certified instantly and it takes about 7 days to get a certified LCA from DOL.
One of the main requirements of the LCA is a declaration made by the employer to pay at least the prevailing wage for the offered position as it is determined by an appropriate wage source for the specific geographic location of employment. To achieve this, the offered position must be correctly categorized and identified by an attorney preparing an H-1B application; this is done through careful analysis of the job description and job requirements. There is a three-digit occupational code which corresponds to a particular field, as well as a six-digit North American Industry Classification System (NAICS) code which defines an occupation within a given industry.
In addition to the certified LCA, an integral component of an H-1B application is the letter of support endorsed by the petitioning employer. This letter seeks to establish that the alien will indeed be employed in a specialty occupation and that the alien is qualified for the position offered. An experienced attorney drafts this important piece of evidence in a way that conveys a correct and convincing message to USCIS adjudicating officers.
H-1B Cap
Congressionally-mandated cap on the number of H-1Bs that can be approved per fiscal year is currently set at 65,000. There is an exemption from this cap available for aliens who have earned a Master’s or higher degree from a university in the United States, however this exemption is limited to 20,000. Also, some petitioning employers are exempt from all numerical limitations. Examples of these employers are: certain institutions of higher education, nonprofit entities related to or affiliated with institutions of higher education, nonprofit research organizations, and governmental research organizations.
H-1B Quotas and Deadline
There are strict filing deadlines for H-1B petitions which all cap-subject applications must adhere to in order to be considered. The fiscal year begins on October 1 and the employment start date can be no earlier than this, so if a petitioner requests an October 1 start date, the application must be submitted on or after April 1. Due to the increasingly high volume of H-1B filings, each year the cap is filled closer and closer to the first day on which cap-subject applications are accepted. While there were years when H-1B quotas would open and close on virtually the same day to a high demand, in 2011 (FY2012) and 2010 (FY2011) H-1B quotas were open until November. However, we at Valentini Law Offices predict that for FY2013 H-1B quotas would be reached well before November 2012.
On November 23, 2011 USCIS announced that both H-1B quotas have been reached. FY 2012 H-1B quota has been filling up at a moderate pace, for example as of April 7, 2011, approximately 5,900 “regular” H-1B cap-subject petitions were receipted and 4,500 petitions for aliens with advanced degrees; as of October 7, 2011, approximately 41,000 “regular” H-1B cap-subject petitions were receipted and 19,100 H-1B petitions for aliens with advanced degrees.
FY2013 H-1B Application Process Starts on April 2, 2012
USCIS will start accepting H-1B applications for FY2013 on Monday, April 2, 2012. Generally, if an H-1B application is approved, a foreign national employee is authorized to start working in the US at the start of the fiscal year, on October 1, 2012. Optional Practical Training (OPT) status holders might be eligible for a “Gap Cap” that would allow them to continue their work in the US beyond the expiration of their OPT and before October 1, 2012.
Since the H-1B quota for FY2013 might not remain open for long, eligible foreign workers and their US employees are advised to immediately contact Valentini Law Offices to start H-1B application process.
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