H-1B Visa

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Everything about H-1B cap

On October 1, 2003, the allotment of H-1B visas provided annually by Congress dropped from 195,000 to 65,000. Out of that number, 6,800 are reserved for the H-1B1 program for nationals of Chile and Singapore . Numbers not used of that 6,800 (which will likely be several thousand) will be made available in the 45 day period beginning October 1st. Congress also has allocated an additional 20,000 H-1B visas for graduates of US masters programs or higher. This week, the H-1B cap for fiscal year 2009 is to open up and USCIS is expected to announce almost immediately that it has received enough applications to meet the 2009 cap (which covers the fiscal year running from October 1, 2008 to September 30, 2009. Numbers in the 20,000 pool will likely last a little longer, but probably not much more than a few days.

The next allotment of H-1B visas in the 65,000 pool will open up on October 1, 2010 with applications being accepted on April 1, 2009. Until then, it will be impossible to obtain new H-1B visas for cap subject employees except for visas leftover from the H-1B1 Singapore/Chile program.


1. Who is actually subject to the cap?

Not every H-1B applicant is subject to the general cap. The cap does not apply to applicants filing H-1B visas through institutions of higher education or their related or nonprofit entities as well as nonprofit research organizations and government research organizations. Visas will still be available for applicants filing for amendments, extensions, and transfers unless they are transferring from an exempt employer or exempt position and were not counted towards the cap previously (such as a physician who receives an H-1B for residency training with an exempt hospital and then seeks a job in private practice afterwards) Physicians receiving waivers of J-1 home residency requirements as a result of agreeing to serve in underserved communities are exempt. Also, graduates of US masters and doctoral degree programs draw numbers from a "bonus" allotment of 20,000 visas. As noted above, nationals of Singapore and Chile draw from a separate cap of 6,800 (5,400 for Singapore and 1,400 for Chile ).


2 .Must one be employed by the institution by which he or she is claiming the H-1B cap?

Note that the statute states that applicants who work AT such institutions are covered so individuals employed by entities other than these institutions but who provide services at the qualifying institution may be cap exempt.
 

3. In 2006, USCIS released a memorandum discussing this question. The agency recognized that the law permitted third party employers to obtain a cap exemption, but set a requirement that the employment must "directly and predominantly" further the essential purposes of the qualifying institution.
USCIS has stated that the burden is on the petitioner to establish there is a logical nexus between the work performed by the beneficiary and the normal primary or essential work performed by the institution. They specifically give the example of a physician employed by a medical group who serves patients at an exempt university hospital.


4. What does it mean to be "affiliated" or "related to" for purposes of the H-1B cap exemption?

USCIS in the same June 2006 memorandum noted above has taken the position that "affiliated" for cap exemption purposes means the same thing as it does for fee exemption purposes (affiliates of institutions of higher education are exempt from worker retraining fees) even though the term is defined in the fee exemption statute and not in the cap exemption statute.
The term in the fee exemption context means "a nonprofit (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative or subsidiary." This relatively restrictive definition would seem to eliminate many employers. However, "related to" has yet to be defined by USCIS.


5. How does USCIS allocate H-1B visas for applications received on the day the cap is announced as having been hit?

USCIS' policy is to hold a random drawing to select the exact number of petitions from the day's receipts needed to meet the cap. USCIS announced that for FY2009, if it receives too many applications in the first five days, all applications received in those five days will be considered together in a random drawing. This is a change from the previous year where just two days' worth of H-1B applications were included together.
All cases filed on that date or later that are subject to the H-1B cap will be returned. Returned petitions will be accompanied by the filing fee.


6. Can an applicant re-submit an H-1B application?

Petitioners may re-submit their petitions when H-1B visas become available for FY 2010. The earliest date a petitioner may file a petition requesting FY 2010 H-1B employment with an employment start date of October 1, 2009 would be April 1, 2009.


7. What will happen to the petitions that do not count against the cap?

Petitions for current H-1B workers normally do not count towards the congressionally mandated H-1B cap. USCIS will continue to process petitions filed to:

Extend the amount of time a current H-1B worker may remain in the United States

Change the terms of employment for current H-1B workers

Allow current H-1B workers to change employers (unless the beneficiary is transferring from a cap exempt employer to a cap subject employer and was never counted towards the cap- in that case the beneficiary will be subject to the cap)

Allow current H-1B workers to work concurrently in a second H-1B position

USCIS will also continue to process petitions for new H-1B employment filed by applicants who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78. And doctors working in underserved communities as a result of receiving a J-1 home residency requirement waiver sponsored by a state or federal agency will also be exempt from the annual cap even after they complete their service. Nationals of Singapore and Chile and graduates of US masters and doctoral programs will be counted against caps specifically set aside for those groups. Note that beginning in January 2008, USCIS requires cap exempt cases to be filed at the USCIS California Service Center.


8. What will happen to F and J visa holders who are beneficiaries of an H-1B petition?

In the past, INS (now USCIS) had safeguards in place for those with F and J visa status. According to 8 CFR Section 214.2 (f)(5)(vi), if it can be determined that all of the H-1B visas will be used before the end of the current fiscal year, the director of USCIS can extend the duration of status of any F-1 student if the employer has timely filed an application for change of status to H-1B. However, in recent years, USCIS has chosen not to exercise this discretion and no word has been given on whether they will or will not do so in the future. 8 CFR Section 214.2(j)(1)(vi) has similar language regarding those in J status. If the USCIS director can determine that all of the H-1B visas will be used before the end of the current fiscal year, the director of USCIS may extend the duration of status of any J-1 nonimmigrant if the employer has timely filed an application for change of status to H-1B. USCIS also declined in recent years to exercise this discretion.



9. When will the numbers in the new 20,000 "bonus" cap be filled and who qualifies?

For the current fiscal year that began on October 1, 2007, USCIS reached the 20,000 cap on just a few weeks afterward. However, many believe the cap will be hit even earlier this year. To qualify in this bonus cap, applicants must have earned a US master's or higher degree. Graduates of medical residency and fellowship programs do not qualify in this category.


10. What will happen if I am not exempt from the cap and my current status expires after the numbers run out?

In order to deal with the lack of H-1B visas, a number of alternate categories may be available including O-1 visas, TN visas for Canadians and Mexicans, E-1 and E-2 visas, L-1s and J-1 training programs. Many will look at pursuing graduate education in the US and then will be eligible for the bonus H-1B quota.

An option available to many this year will be filing for permanent residency. There are many work-related green card applications that can be filed without a labor certification. And the new PERM labor certification program means that employment authorization can be obtained much earlier. Now that concurrent filing of I-140 and adjustment of status applications area available, it may be possible to secure an employment authorization document in a matter of a couple of months after the green card process is started. Furthermore, premium processing of I-140s is now available in several categories. Note that green cards are backlogged as of April 2007 for numerous categories and nationalities so a permanent residency strategy may not work for many.

We advise people subject to the cap looking for alternative strategies to consult early with their immigration lawyers.


11. What happens if the 20,000 bonus cap for master's degree holders and higher and the general cap of 65,000 are reached within the first five days of the fiscal year?

Under a rule promulgated in March 2008, If both caps are exhausted within the first five days, USCIS will first conduct a random selection process for the master's cap cases and then those not selected will be counted in the random selection process for the general cap. This is intended to ensure that those not selected in the master's cap are treated no worse than those in the general cap. A person not selected in either drawing will have his or her application rejected.


12. What happens to petitioners who file multiple applications?

Under the March 2008 rule released by USCIS, petitioners are barred from filing more than one H-1B petition on behalf of the same alien even if the petitions are for different positions. If an employer legitimately has two positions it wants an alien to fill, it would need to amend the application or file a concurrent H-1B application to change the job or add additional duties. Employers found to have violated this rule will have all petitions for an individual worker rejected. Note that the new rule does not preclude related employers from filing petitions on behalf of the same employer. But in these cases, the related employer may be requested to show that it has a legitimate business need for the employee lest employers seek to use related employers to improve the chances of an applicant being selected.
 

13. Will an employer get a refund of the filing fees if it files a case claiming to be exempt from the H-1B cap and USCIS decides it is subject?

Under the March 2008 rule, USCIS will now deny the case and keep the filing fees rather than reject the case and return the fee. According to USCIS, this is because it is necessary for the agency to actually adjudicate the case to determine if it is subject to the cap.
 

Facts about H1 Transfer

Every month, we receive several queries from readers regarding H1 Transfer. Here are the facts that you need to know about the process:
 

• A person with an H1 visa is allowed to change/ transfer jobs and one must inform the USCIS of such a change in one’s employment status.
• You don’t need any permission from your current employer for H1 transfer and hence there is no requirement for an individual to inform his current employer if you are applying for the same
• Your current employer cannot come to know of your H1 transfer through government agencies such as the USCIS, Dept. of Labor etc. but be wary of colleagues with whom you might have discussed your H1 transfer. They might accidentally mention it to you boss.
• On obtaining the H1 transfer there is no time limit to join your new employer. The date of joining is entirely between you and your employer and you may work until the expiration date of your LCA.
• There is no limit to the number of times you can apply for the H1 transfer.
• One can apply for H1 transfer for multiple employers at the same time.
• 2-3 pay stubs from your previous employer are sufficient when applying for H1 transfer.
• H1 status and H1 visa stamp are different from one another. While H1 visa stamp is used only to enter into United States, H1 status is required to work in US for petitioning employer.
• If you have received H1 approval for new employer (or even receipt of H1 filing for new employer), you can work in US on H1 legally for new employer.
• If you travel outside US, and your H1 visa stamp (even if from previous employer) is still not expired and valid, you can use that H1 visa stamp along with H1 petition from new employer to travel back into US. However, if your H1 visa stamp has expired (either from previous or current employer), you must get your H1 visa stamped in your passport before you can travel to United States again.
• After the approval of H1 transfer with a new employer, an individual can continue to work with the old employer if one changes one’s mind about the joining the new employer. One can continue working with current employer as if H1 transfer was never filed for.
   

H-1B Stamping and Travel Information

Documents Required for H-1B Travel and Re-entry to the U.S.

If you are making a trip outside the United States, to reenter the U.S., you will need the following:
 

• valid passport
• original Form I-797A (H1B Approval Notice for your current position)
• letter from your employer confirming current employment in the position described in the H-1B petition
• valid H-1B visa stamp in your passport. If you do not have a valid H-1B visa stamp in your passport, you must apply for one at a U.S. Embassy or Consulate abroad. Please see section below on visa issuance and renewal for more information.

Please note: If you have filed for adjustment of status and are planning to travel, please contact the ISSO to discuss traveling with your H-1B documentation or advance parole.

Obtaining an H-1B Visa Stamp:

If you have changed your non-immigrant status while in the United States and have never had an H-1B visa stamp in your passport, or if your H1B visa stamp has expired, you must make an application with a U.S. Embassy or Consulate outside of the U.S. to obtain an H-1B visa for re-entry. You will need to present the following documentation:
 

• original Form I-797A (H-1B Approval Notice for your current position)
• copy of Form ETA-9035 Labor Conditions Application (LCA)
• copy of Form 1-129 (petition for H1B submitted to INS on your behalf)
• letter from your department confirming employment and that you are expected to return to the U.S. to resume the terms of your contract
• original waiver of the two year home residency requirement (if you were previously in J- 1 visa status and received a waiver)
• valid passport (valid 6 months into the future)
• Form DS - 156 (available at Embassy/Consulate)
• Please contact the specific U.S. Consulate or Embassy where you plan to apply for other requirements, including photos and fees. Also, note that some Consulates and Embassies have recently changed to an appointment system. Please confirm application procedures prior to your trip.

Visa Renewal

If you have an H-1B visa stamp and it has expired, you must apply for the renewal of the visa stamp in the same way that you applied for the initial H1B visa stamp in person at a U.S. Embassy or Consulate abroad (see information above).

Can I apply to renew my visa in Canada or Mexico?

It is possible to renew your visa in Canada or Mexico. However, if your visa is denied for any reason, you will not be allowed to reenter the United States. Citizens of certain foreign countries (Iraq, Syria, Libya, Sudan, North Korea and Cuba) are not eligible to apply for a visa in Canada or Mexico.

Please note that Canadian and Mexican consulates accept nonimmigrant visa applications by third-country nationals (individuals who are not citizens of Canada or Mexico) as a courtesy. They are not required to accept or process applications by third-country nationals, and visa issuance is at the sole discretion of the consular officers at the post. In addition, note that as a third country national you may need a visa to enter Canada or Mexico.

Visa Stamping in Mexico

You can go to Mexico if you were never out of status. You can use the following to prove your status. Degree transcripts, EAD card, I-797, etc. If you cannot prove that you were in status or were actually out of status, you need to go to your home country.

If you are changing from any non F1 (i.e. B1, H4, J1) to H1 status, you need to contact an attorney or some other reliable sources for getting the exact information.

Please note that the Mexican government considers applying for a visa in Mexico as "official business". This means that an entry visa for Mexico will probably be required.

Appointment

All the candidates need to get an appointment online or by calling the 1-888-840-0032 number. It is advisable to make the appointment online as it may be cheaper if you are investigating the availability of appointments in various consulates. If you use the phone system they bill you for each minute you spend on the phone call. Make appointment at least 2 months before the actual interview date as it will give you ample time to get vacation approved from your employer and getting lowest fare for your air tickets to El Paso(If you plan to fly).

Documents

You need the following documents for the interview if you were on a student visa before:
 

• Original I-94.
• Original I-20 from all schools attended
• Original EAD card(practical training document)
• Original degree certificates(if not available, get a letter from your school stating a valid reason)
• Original transcripts
• Employer certified copy of LCA.
• Employer certified copy of I-129 with cover letter that was submitted to USCIS for getting H-1B visa.
• Original I-797 approval form(H1 visa approval, Notice of Action)
• Original letter of employment verifying your salary, position, employment dates and duties.
• Previous pay stubs
• Tax returns and W-2 forms for all the years while your were in US.

Traveling to Canada, Mexico for less than thirty days

If you have an expired H1B visa stamp or if you have an expired U.S. nonimmigrant visa of any other type (e.g. B, F, J) and you have a valid I-94 card stating your current valid H1B status, your visa will be considered automatically revalidated when you re-enter the U.S. from Canada or Mexico as long as ALL of the following are true:
 

• you have only been in Canada or Mexico for less than 30 days
• you have with you a current I-94 card stating your valid H1B status
• you do not apply for a visa while in Canada or Mexico
• you are not from one of the countries currently considered by the U.S. to be state sponsors of terrorism (as of 11/11/02 this includes Iran, Iraq, Syria, Libya, Sudan, North Korea and Cuba)

For this automatic revalidation to apply to you, you must be careful to keep your I-94 card when leaving the U.S. to enter Canada or Mexico for a trip of less than 30 days. Present you I-94 card along with your valid passport, original Form I-797A (H1B Approval Notice for your current position) and a letter from your employer confirming current employment in the position described in the H-1B petition.

Note regarding dependants

H-4 spouses and minor children must also meet the above passport and visa requirements and show proof of family relationship for re-entry to the US. If they are not accompanied by the H-1 scholar, they must have Form I-797 (H-1 approval form).

(Disclaimer: The above information is just the opinion of Xsys Software Technologies  and does not substitute the services of a lawyer. Readers are requested to get proper legal advice before taking any action)

 

Candidates can forward their resumes to careers@xsyssoftech.com