H-1B VISAS: WHEN TO FILE
by Jeffrey Ehrenpreis
Filing Deadline. In fiscal year 2015, which began October 1, 2014, the quota of 85,000 visas that were allocated to the H-1B temporary work permit category was filled in the first five business days filing was permitted. An H-1B petition can be filed six months in advance of the start of the fiscal year. The first day a petition can be filed for the next fiscal year is Wednesday, April 1, 2015, 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 2014, the U.S. Citizenship and Immigration Services (“USCIS”) received approximately 170,000 H-1B petitions in the first five business days filing was permitted, and only 85,000 of those were randomly computer-selected for processing. In addition to the 65,000 H-1B visas available for holders of Bachelor’s degrees, there is a separate allocation of 20,000 additional H-1B visas available for individuals with a Master’s degree, or higher, earned at a U.S. university.
Certain types of H-1B petitions are not counted against the 85,000 visa 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 with the same employer are not counted against the quota. Petitions by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations, are also quota exempt.
Since no H-1B visas will be available for persons who missed the 2015 fiscal year quota until October 1, 2016 (the first day of the 2016 fiscal year), it is imperative that all H-1B petitions be filed on the very first possible date (April 1, 2015). 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 an occupation that requires 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. For example, a person could combine two years of university study and six years of progressively responsible work experience to obtain an education evaluation that is equivalent to a U.S. Bachelor’s degree. 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.
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.
For additional information on obtaining an H-1B visa, please contact the undersigned.
Ehrenpreis Immigration Law
1880 Century Park East, Suite 550
Los Angeles, CA 90067
Phone: (310) 553-6600
This newsletter is intended for informational purposes only and should not be considered legal advice or to have created an attorney-client relationship. For legal advice, please contact our office directly.