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H1B Visa Category

JACEvery year, U.S. employers seeking highly skilled foreign professionals submit their applications for the pool of H-1B visas made available by U.S. Citizenship and Immigration Services (USCIS) on April 1. With a statutory limit of 65,000 visas available for new hires—and 20,000 additional visas for foreign professionals who graduate with a Master’s or Doctorate from a U.S. university—in recent years demand for H-1B visas has outstripped the supply and the cap has been quickly reached. This fact sheet provides an overview of the H-1B visa category and petition process, addresses the myths perpetuated around the H-1B visa category, and highlights the key contributions H-1B workers make to the U.S. economy.

Overview of the H1B Visa Category and the Application Process

What is the H1B visa category?

  • The H-1B visa category is for temporary (non-immigrant) employment for highly educated foreign professionals in “specialty occupations” that require at least a bachelor’s degree or the equivalent. Typically, a foreign worker may be admitted for a maximum of six years in the H-1B classification, with the U.S. employer initially petitioning USCIS for a validity period of up to three years.
  • Before the employer can file a petition with USCIS, the employer must attest, on a labor condition application (LCA) certified by the Department of Labor (DOL), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Before filing the LCA with DOL, the employer must provide notice that an LCA is being filed to the appropriate bargaining representative, if any, or through electronic or physical postings for 10 days at the intended worksite(s). This gives U.S. workers notice that the employer intends to hire an H-1B worker and serves as an additional measure to protect current employees.
  • Since 1990, Congress has limited the number of H-1B visas made available each year. The current statutory cap is 65,000 visas per year, with 20,000 additional visas for foreign professionals who graduate with a Master’s or Doctorate from a U.S. university. In recent years, the limit has been reached only a few days after the visas are made available.

What is the annual H-1B visa “lottery”?

Because the annual cap for H-1B visas does not meet the current demand for high-skilled workers, over the past several years, USCIS has received a greater number of petitions than there are visas available. USCIS then uses a random selection process to choose from the pool of applications received.

  • When USCIS begins accepting H-1B petitions on April 1, it typically receives a greater number of applications than the cap allows. If the cap is hit during the first 5 business days, USCIS will conduct a lottery from all the petitions it received during those first 5 days.
  • A computer-generated random selection process is used to select the petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree “cap exemption.” USCIS first conducts the lottery for the 20,000 cap exemption category; those requests that are not selected are put back into the pool for the 65,000.
  • In 6 of the last 10 fiscal years the H-1B visa cap has been reached in less than 90 days. USCIS announced on April 7, 2014, that it had filled the cap for Fiscal Year (FY) 2015. Within the first five business days, USCIS had received “a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015,” and had also “received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.”

Immigration News from ILW.COM

FAQs
  • Q: My employer wants to sponsor me to get a green card – can they?

    If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.

  • Q: How can I get a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit, but you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. Don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and immigration laws in the United States really work.

  • Q:  Can I apply for deferred action now?

    As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.

  • Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?

    The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.

  • Q:  Who can I contact for more help or information?

    It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status.  Do not take advice about your immigration case from a notary public or an immigration consultant.  The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice.  Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.

  • Q; What should I do now?

    You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.

  • Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?

    If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better, so contact one of our attorneys now to get started or browse our site to learn more about the different types of visas available for family members.

  • Q: My grandma is sick back home – can I go visit her?

    Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.

  • Q: Can our company sponsor an employee to get a green card?

    If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.

  • Q: What is a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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