How the United States Immigration System Works

This is not my own post, but it was well researched and written by American Immigration Council.  The article sums up the essence of our immigration system here in the United States.  Since there has been much debate about immigration, in advance of the election, I believe the article provides good information that sets the stage for any intelligent discussion on the issue.

More About the H-1B Visa: Cap & Extensions

Did you know the number of H-1B visas issued each year is subject to an annual cap, known as H-1B cap, and is determined by the U.S. Congress? Presently, the maximum number of visas is capped at 65,000 per fiscal year (October 1 to September 30). An additional 20,000 are available to individuals with a Master’s degree or higher from a U.S. institution of higher education. The USCIS begins accepting new H-1B petitions for the upcoming fiscal year on April 1 of that year, and is required to keep accepting cap filings for a minimum of five business days. Thereafter, USCIS continues to accept new petitions only until the H-1B quota is reached. If there are enough cases to meet or exceed the cap in the first five days, the cap closes and USCIS stops accepting new cap filings.

The USCIS then uses a computer-generated random selection process, commonly known as the “lottery” to randomly select petitions that USCIS will adjudicate. USCIS conducts the selection process for advanced degree exemptions first. Advanced-degree petitions that weren’t selected become part of the random selection process for the 65,000 cap. For cap-subject petitions not randomly selected in the lottery, USCIS rejects and returns the petitions with the filing fees.

Are there H-1B petitions not subject to cap?

Under certain circumstances, certain types of H-1B applications are not subject to the cap, including the following:

  • Applications for extensions of H-1B status;
  • H-1B petitions for concurrent employment where the foreign worker is presently in H-1B status that is subject to the cap;
  • H-1B petitions to change employers if the foreign worker has been subject to the quota in the past six years;
  • H-1B applications sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government or nonprofit research organizations; and
  • H-1B applications for physicians who received J waivers under a Conrad 30 Waiver Program

Can an H-1B visa extend beyond the six-year limit?

In certain circumstances, an employee may receive extensions of H-1B status beyond six years, if he or she is in the process of applying for employment based permanent residence.

Specifically, under the American Competitiveness in the Twenty-First Century Act (referred to as “AC21 Act”), an employee may request extensions under the following situations:

  • If an H-1B holder has submitted either a Labor Certification Application (LCA) or an I-140 immigration petition prior to their fifth year anniversary of having the H-1B visa (365 days before reaching the six-year limitation), and the LCA or I-140 has not been denied, then he or she is entitled to renew his H-1B visa beyond the six-year limit until a decision has been rendered on the application for permanent residence.
  • If the H-1B holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to the priority date not being current, he/ she may be entitled to a three-year extension of his H-1B visa.

What about dependents?

Spouse and minor children of an H-1B employee are authorized to live in the U.S. in H-4 status.

The H-1B process can be very complex. Contact the Law Office of Alison Yew to speak to our H-1B visa attorneys in San Jose for more detailed information and assistance on the preparation and filing of H-1B petitions.

‘Tis the Season… for Filing

Is it that time of the year already? Looks like it!

It’s never too early to begin preparing for the H-1B cap filing season! Although there has been much speculation on possible changes to H-1B petitions for fiscal year 2017, it’s best to start thinking about and planning for your petitioning needs. Our H-1B visa lawyers in San Jose will be sure to stay on top of any significant updates.

As of now, we assume H-1B petitions for the new fiscal year, effective starting on or after October 1, 2016, will be accepted by USCIS beginning April 1, 2016. In the past few years, the number of H-1B petitions submitted has grown immensely. The USCIS this year received nearly 233,000 H-1B petitions for 85,000 spots (65,000 annual cap and an additional 20,000 available to individuals with a Master’s degree or higher from a U.S. institution of higher education).

If the previous few years serve as a trend, we expect the H-1B quota to be reached within the first week of filing in 2016. Employers should begin preparing H-1B petitions as early as possible so that a complete petition can be submitted to USCIS on April 1, the first day that the quota opens. The H-1B process can be complex and requires in-depth preparation and gathering of required documentation. So we advise you begin to consider your employment needs, and whether you may want to sponsor current or potential employees for H-1B status. This may include professionals who are currently employed in F-1 Optional Practical Training (OPT) status, TN status, J-1/J-2 status, or L-1B employees nearing the five-year limit on their L-1B status.

Learn more detailed information on this specialty occupation visa. For expert help, contact our H-1B visa immigration lawyers in San Jose today. Let’s begin planning and preparing for your H-1B needs.

H-1B1 for Singaporean and Chilean Nationals

The H-1B1 category of work visa was created by the U.S./Singapore Free Trade Agreement and the U.S./Chile Free Trade Agreement, and only Singaporean and Chilean citizens are eligible as principal applicants.  There are 1,400 H-1B1 visas available for Chileans nationals and 5,400 H-1B1 visas for Singaporean nationals.  The visa availability is per fiscal year, which is from October 1 to September 30.

Spouses and dependent children (unmarried and 21 years of age) may obtain dependent H-4 status.

Eligibility requirements include:

  • The position must be a specialty occupation; that is, it must require theoretical and practical application of a body of specialized knowledge. Some examples of specialty occupations are jobs in the fields of engineering, mathematics, physical sciences, computer sciences, medicine and health care, education, biotechnology, and business specialties such as management and human resources (think H-1B).
  • The foreign national must have a post-secondary degree involving at least four years of study in his or her field of specialization.
  • H-1B1 visa does not allow the foreign national to be self-employed or be an independent contractor.
  • The period of employment in the U.S. must be temporary, so the foreign national must demonstrate non-immigrant intent (unlike an H-1B, which allows for “dual intent”). H-1B1 status is issued in one-year increments, as opposed to 3 year validity periods in H-1B visa status.
  • The United States Citizenship and immigration Services typically approves H1B1 petitions for a one year term which can be extended subsequently.

Unlike the H-1B visa, there is no requirement for a Petition for Nonimmigrant worker to be approved by the United States Citizenship and Immigration Services. The candidate can apply for a H-1B1 visa directly at the US Consulate in his or her home country by submitting the appropriate nonimmigrant visa application along with a detailed employment offer letter, a Labor Condition Application (LCA) certified by the Department of Labor, and the relevant supporting documents.

Due to the limited availability of H-1B visas, employers may find it useful to consider filing H-1B1 petitions for eligible candidates. Filing H-1B1 visa petitions does not preclude citizens of Chile and Singapore from obtainig a regular H-1B visa.

Please contact our law office for additional discussion of this category and alternative options, such as changing to H-1B status to allow for starting the process of filing for permanent resident status.


No More New H-1B Visas for FY2014

For the first time since 2008, USCIS reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period (April 1-7, 2013). USCIS received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.   Employers seeking new employment on behalf of foreign workers in this category must wait until the next fiscal year (FY 2015), beginning on April 1, 2014.

Employers seeking extensions or transfers of previously issued H-1B visas, or offering jobs in the cap-exempt categories, are not subject to the cap and may submit these petitions now.

In order to qualify for a H-1B specialty occupation visa for its foreign worker, the petitioning employer must offer a job that normally requires at least a  bachelors degree as the minimum entry requirement for the position.  The degree requirement must be common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree.  A Labor Condition authorization from the Department of Labor is a prerequisite.

Alison Yew has successfully obtained H-1B visas for large and mid-size businesses across the United States, including a national health care insurance company and national law firm.  Ms. Yew successfully obtained an H-1B visa for  the FY 2014 during the short petition acceptance window in April 2013, and is available to evaluate your employment needs and whether H-1B or another temporary visa is appropriate.