H-1B PROFESSIONAL VISA CAP REACHED
On Jan. 26, U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of cap-subject H-1B temporary professional visa petitions for employment commencing during the current fiscal year (Oct. 1, 2010 to Sept. 30, 2011). Cap-subject employers seeking to employ new professional workers now must wait until April 1 of this year to file new petitions for employment commencing Oct. 1, 2011.
Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (masters or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore). While not all H-1B applicants are subject to the cap, the vast majority in business are.
For the second year in a row, H-1Bs remained available for some 9-10 months after the U.S. government began accepting applications. Even in 2009, with the recession beginning to take hold, employers snapped up the 65,000 visas available in just one day, as they had for the past several years. While the weakened economy no doubt has played a significant role in lessening the demand for the once-coveted visa, more recently companies have become increasingly reluctant to petition for foreign workers in the face of rising costs and greater governmental scrutiny. In the past two years, several disincentives for H-1B visas were put into place. These include the USCIS
- appreciably altering its definition of what constitutes a valid employer-employee relationship;
- adding fees for H-1B “dependent employers”;
- requiring companies that received TARP federal bailout funds to prove they have tried to recruit American workers at prevailing wages and that foreigners are not replacing U.S. citizens; and
- effective Feb. 20 requiring that H-1B employers attest that they are in compliance with the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) regarding the release of controlled technology or data. (See News in Brief for more information about the new “deemed” export rule.)
Even though the cap has been reached for this fiscal year, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.
NEW I-9 HANDBOOK ADDRESSES H-1B PORTABILITY AND NONIMMIGRANT EXTENSIONS OF STATUS
USCIS recently issued new guidance for employers on the process of completing Form I-9, or employment eligibility verification, by issuing an updated version of The Handbook for Employers. Some of the most important changes address the issue of “portability,” or transferring an H-1B employee to another employer, and pending extension of status petitions. The Handbook now provides that an employee in valid H-1B status who ports to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. Previously, the H-1B employee would have to wait to receive an I-797 receipt notice prior to beginning work with the new employer, which could take weeks or even months to arrive. With respect to extensions, the Handbook provides that an employee with a timely filed extension of status petition — in other words, a petition filed before the employee’s work authorization expires — is eligible for continued work authorization for up to 240 days beyond the expiration date of that authorization, as long as the extension remains pending. The Handbook provides a detailed explanation on how to complete the Form I-9 and the documentation to be attached for individuals in H, E, L, O, and P status.
Employers are encouraged to consult the new Handbook when reviewing their company’s I-9 compliance procedures. All employers must complete Form I-9 for every worker hired after Nov. 6, 1986, and those with multiple foreign-national employees are encouraged to establish formal I-9 audit and compliance plans. A link to download the Handbook can be found at www.uscis.gov/i-9.
Dilip Patel of Dilip Patel Law Firm (Business and Immigration Attorneys) is board certified in immigration and nationality law. He can be reached at (813) 855-0066, e-mail [email protected] or visit www.dplawfirm.com