USCIS Receiving H-1B Visa Applications for Fiscal Year 2013 at an Accelerated Pace
There has been an uptick in the number of H-1B visa applications filed for fiscal year 2013, and employers should plan ahead to avoid delays that could bar them from obtaining an H-1B visa for a guestworker, immigration attorney Karen-Lee Pollak of Bell Nunnally & Martin writes in this BNA Insights article. Pollak also reviews H-1B visa alternatives available for nonimmigrant workers that may be critical for employers when the H-1B visa cap is met.
The H-1B visa program enables U.S. employers to hire highly educated foreign professional workers for ''specialty occupations''—jobs that require at least a bachelor's degree or the equivalent in the field of specialty. These foreign workers provide needed specialized or unique skills, fill a temporary labor shortage and/or supply global expertise. Holders of these visas can stay in the United States for up to six years. H-1B visas can be extended beyond six years where the alien beneficiary has an approved I-140 (Petition for Immigrant Worker) but due to the backlog in issuing visas does not yet have a visa number available to them. This often occurs where the immigrant is a national of a country that has more visa applicants than visas available each year, such as Mexico, China, or India.
As of May 18, USCIS had received 42,000 petitions for H-1B visas subject to the 65,000 visa cap for fiscal year 2013. The agency had received 16,000 petitions toward the separate 20,000 cap for H-1B guestworkers with advanced degrees.
USCIS saw an uptick this year in the number of H-1B petitions filed, with 17,400 petitions filed toward the cap as of April 9 (6 WIR 233, 4/16/12). As of April 22 last year, USCIS had received only 8,000 petitions toward the 65,000 visa cap (5 WIR 228, 5/2/11). Several years ago it was common for the H-1B cap to be met on the first day petitions were accepted, six months before the Oct. 1 start of the next fiscal year.
Employers should plan ahead when seeking an H-1B visa. There are certain aspects of the application process that are beyond the employer's control and may delay the timely filing of an application. First, obtaining a certified Labor Condition Application (LCA) is no longer immediate upon submission online. The LCA contains several attestations by employers including an attestation that they will pay the H-1B employee the prevailing wage for the job position.
Now employers have to submit the LCA to the Department of Labor and wait up to seven days if not longer to obtain an approved LCA. Many employers have already experienced delays in obtaining an approved LCA where the Department of Labor cannot verify the employer's tax identification number and requests additional documents before providing an approved LCA.
In addition to gathering all standard supporting documents required for the H-1B petition, such as catalogues or brochures on the company, financials, and proof of the beneficiary's education and work experience, employers who place workers at third-party client sites or who are information technology consulting and staffing companies should also present additional evidence to establish the employer-employee relationship and that a job is available to the beneficiary of the petition.
On March 12, USCIS issued a revised Q&A on the Neufeld Memorandum dated January 8, 2010, which addressed some of these issues. In this revised Q&A, USCIS states:''A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary's salary; whether the petitioner will determine the beneficiary's location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training and counseling for the beneficiary.''
USCIS will also continue to use its web-based Validation Instrument for Business Enterprise (VIBE) tool. This tool uses public information including Dunn & Bradstreet reports and previously accumulated third party data to validate data about petitioners filing employment-based immigrant and non-immigrant petitions. Careful consideration should be given to employees in Optional Practical Training (OPT) status that may expire in May or June 2012. In past years, Congress provided relief in the form of a ''cap-gap'' to allow an employee who has an H-1B approved at the time that their OPT expired to stay and work in the United States until October 1 when they could first work in H-1B status.
Employers may also be able to extend OPT for Science, Technology, Engineering and Mathematics students (STEM). However, in order to be eligible for these extensions, employer must be registered with E-Verify, the federal government's electronic employment verification program.
H-1B visas are limited to 65,000 per year. However, certain cases are exempt from the cap. This numerical limit is further reduced by free trade agreements that specifically allocate 6,800 H-1B visas for nationals of Singapore and Chile, making only 58,200 visas available in the standard H-1B pool. After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2013 fiscal year.
The following cases are exempt from the H-1B cap: 1) extensions for current H-1B workers, whether for a new or existing employer in sequential employment situations; 2) concurrent employment in a second H-1B position; 3) amended petitions; 4) H-1B employment for nationals of Chile or Singapore; 5) petitions for new employment at an exempt organization such as a nonprofit research organization, an institution of higher education or an affiliated nonprofit entity; and 6) 20,000 H-1B visas for graduates of U.S. universities who have earned a masters or higher degree.
The diligent employer will be well-served in starting to consider their H-1B employment needs for the upcoming fiscal year. It may be worthwhile to pay the extra $1,225 premium processing fee to have your H-1B visa applications adjudicated in fifteen days. Although an employer is not guaranteed to receive approval in 15 days, at least he or she will know where the application stands if it is denied or USCIS issues a request for further evidence that requires the employer to submit additional documents.