By Atty. James G. Beirne

AS expected, there was no scramble in filing H-1B (working visa) applications in the first few days since the USCIS started accepting petitions last April 1. In previous years, the U.S. Citizenship and Immigration Service had to stop accepting H-1B visa petitions after just a few days from the first working day of April, which has traditionally been the day USCIS starts accepting applications for H-1B.

But as of April 8, the USCIS reported having received only about 13,500 H-1B petitions counting toward the 65,000 annual cap and only about 5,600 petitions for individuals with US master’s degrees, which has an annual cap of 20,000.

Thus, the USCIS said it would continue to accept applications for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption for the Fiscal Year 2011, which starts on October 1 and ends on September 30, 2011.

In the last few years, there had been a scramble to submit the application in the first hours of April 1. From 2005 to 2007, applications received on the first two or three days already exceeded the 65,000 quota on visas available per immigration fiscal year. In 2008, more than 200,000 applications were received in the first five days.

Last year, the scramble didn’t occur. Three weeks after the USCIS started accepting applications, only about 45,000 H-1B cap-subject petitions were received by the USCIS. The slowdown was credited to the economic downturn.

This does not mean, however, that the quota won’t be reached this year. It’s possible that employers are just waiting for a better time to file their petitions. It would still be advisable to file the H-1b petitions as soon as possible to avoid being excluded from those to be processed for the coming fiscal year.

When the applications exceed the quota, a special random lottery is held for 65,000 lucky applicants whose applications would be given priority for H-1B visa processing. The 65,000 applications that will be picked in the lottery do not necessarily get approved for an H-1B visa. It only means that they will be the ones that will be processed and determined if qualified for a visa. And these visas won’t be available until Oct. 1, 2010.

The USCIS said that should it receive the necessary number of petitions to meet the respective caps, it would issue an update to advise the public that, as of a certain date (the "final receipt date"), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date, the agency added.

To ensure a fair system, the USCIS said it may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. The USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

For cases filed for premium processing during the initial five-day filing window of April 1-7, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Petitions filed by employers who are exempt from the cap or petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years will not count toward the congressionally mandated H-1B cap.

Therefore, USCIS will continue to process all petitions filed.

The H-1b visa is one of the fastest ways to enter, live and work in the U.S. An H-IB visa is available to foreign workers who are college graduates and who are engaged in what is known as "specialty occupation," or those who will work temporarily as a fashion model of distinguished merit and ability.

A specialty occupation is defined by the USCIS as one that "requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent." For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

The bachelor’s degree must be related to the job for which an alien worker is being sponsored.

The petitioning employer must have an immediate opening related to the foreign worker’s college degree, must agree to pay the "prevailing wage" for that position, and must have the financial capability to pay the prevailing wage.

A Labor Certification Application is filed with the U.S. Department of Labor, wherein the prospective employer attests that the alien will be paid no lower than the prevailing wage for the specific job in the geographic area of intended employment, that the employment of the alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment, that there no strikes, lockouts, or work stoppages in the course of a labor dispute at the place of employment, and that notice of application will be posted in two conspicuous locations in the employer’s place of business.

Once the LCA has been approved, the H-1B petition will then be ready for filing with the INS. If the case is approved, the prospective employee will either need to attend an interview for his or her H-1B Visa at the foreign consulate usually of their native country, or if the individual has some other form of U.S. legal immigration status that will remain valid beyond the October 1st date, he or she may have the opportunity to file a case as a "Change of Status" whereby the employee is permitted to remain in the United States until the October 1st start date to begin his or her post without having to return to the consulate for an interview to receive the H-1B Visa.

The qualified employee is granted three years in H-1B status working only for the petitioning company sponsoring his or her H-1B. If an employee works for multiple employers (full time or part time), each employer must file separate H1B petitions.

The visa is valid for three years, extendable to six. An exception to maximum length of stay applies in certain circumstances: one-year extensions if a labor certification application (towards a green card) has been filed and is pending for at least 365 days; and three-year extensions if an I-140 (Immigrant Petition for Alien Worker) has been approved.

Holders of H-1B visa are allowed to bring their immediate family members (spouse and children under 21) to the US under the H-4 Visa category as dependents. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status.

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