H-1B Visas 2008
From Ralph Ehrenpreis:
Filing Deadline. In fiscal year 2007, the quota of 65,000 visas allocated to the H-1B temporary work permit category was filled on the first date filing was permitted. An H-1B petition can be filed six months in advance of the start of the fiscal year. The first date a petition can be filed for next fiscal year is Tuesday, April 1, 2008, six months in advance of October 1, which is the date the individual can begin working. An H-1B visa is available to an individual (i) with a university degree, or its equivalent; (ii) a job offer in the United States that requires that type of a degree; and (iii) a wage offer equal to or above the prevailing wage rate for that type of job.
In April, 2007, the U.S. Citizenship and Immigration Services (“USCIS”) received approximately 120,000 H-1B petitions on the first date of filing, and only 65,000 of those were randomly computer-selected for processing. In addition to the 65,000 H-1B visas available for holders of Bachelors degrees, there is a separate allocation of 20,000 additional H-1B visas available for individuals with a Masters degree, or higher, earned at a U.S. university. This allocation was not filled until April 30, 2007, slightly more than four weeks after the first permissible date of filing.
Certain types of H-1B petitions are not counted against the 65,000 quota. Only “new employment” is covered under the quota. A person who has received an H-1B within the last six years and applies for another H-1B with a different employer is not considered to be applying for new employment and is not subject to the quota. In addition, extensions of H-1B status are not counted against the quota. Petitions by institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations, are also quota exempt.
Since no H-1B visas will be available for persons who miss the 2008 fiscal year quota until October 1, 2009, it is imperative that all H-1B petitions be filed on the very first possible date (April 1, 2008). Even persons with U.S. Masters degrees should file on April 1 since it is impossible to predict how long that quota will last this year. Therefore, an individual or company considering an H-1B petition should begin the process immediately so that the petition will be ready to file on the first possible date.
Definition. H-1B visas are the most frequently obtained nonimmigrant work permits for corporate employees, and are available to persons in a specialty occupation coming temporarily to the United States for full-time or part-time employment. A specialty occupation is defined as the theoretical and practical application of a body of highly specialized knowledge, as well as attainment of a Bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation. Examples of specialty occupations are engineers, computer analysts, architects, accountants, and attorneys. If the occupation requires a license to perform the duties of the job, the alien must have that license prior to the approval of the H-1B petition.
Equivalency Evaluations. If the individual has a foreign degree, an evaluation must be obtained from a recognized credentials evaluation service attesting that the foreign degree is equivalent to a Bachelor’s degree, or higher, from a United States university. If the person has less than the equivalent of a United States university degree based solely upon his or her education, he or she may be able to obtain a favorable equivalency evaluation based upon a combination of education, specialized training, and recognition of expertise in the specialty through progressively responsible positions directly related to the specialty occupation. Every three years of progressively responsible experience in an occupation which includes the theoretical and practical application of specialized knowledge required at the professional level is the equivalent of one year of university for purposes of determining education equivalency. In a number of cases, the courts have determined that twelve years or more of progressively responsible work experience alone, without education, is sufficient to qualify for H-1B status, although the USCIS frequently denies H-1B petitions when the individual is relying upon experience alone, with no educational component. Therefore, a person with a foreign degree, or a person with no university degree at all but with a combination of education and work experience, may qualify for H-1B status, while a person with only work experience may or may not qualify.
Minimum requirements. A difficult question arises when it is not clear that the person’s type of university degree is a minimum requirement for the particular job. For example, a degree in Business Administration may or may not be a minimum requirement for a marketing position. If the position is for a salesperson, rather than a marketing executive, a business degree may have less chance of being regarded as a preliminary requirement. Perhaps the answer lies in the complexity of the job duties. But what if the person offered a position as a marketing executive has a degree in Philosophy? The success of an H-1B petition also hinges on the ability to prove the connection between the university degree and the job being offered.
Duration. Status as an H-1B is granted for an initial period of up to three years. H-1B status may be extended for three additional years, except for seasonal or intermittent workers who may continue to obtain H-1B status beyond the six years. The six year limitation also does not apply to a person who resides for less than six months in the U.S. each year. An extension of H-1B status beyond six years also may be obtained for any employee who has filed an application for lawful permanent residence status which is at least 365 days old. If an individual is subject to the six year limitation, he or she may begin a new six year period of H-1B status after leaving the United States for one year.
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