H-1B Professional Visa

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By: Irina Manelis, Esq.

As we prepare to greet spring, with April 1st hovering just around the corner, it is time for employers and employees to start planning for the H-1B season.

The H-1B visa classification allows foreign nationals to work for U.S. employers in specialty occupations which require a bachelor's degree or equivalent as a minimum entry level requirement for the job. This visa is often used by computer programmers, engineers, teachers, certain managers, accountants, and many other degree-holding professionals. H-1B status can be granted for a maximum of six years, in increments. However, H-1B visa holders who timely pursue the permanent residence ("green card") process through employment are entitled to additional extensions beyond the six year period. One very advantageous feature of the H-1B visa is that it is considered to be "dual-intent," allowing a person to simultaneously pursue temporary H-1B visa status and permanent residency.

Critically, the H-1B visa category is subject to an annual numerical limitation (the "cap"), so that each fiscal year, U.S. Citizenship and Immigration Services (USCIS) is only authorized to issue 65,000 new H-1B visas. The first 20,000 H-1B petitions filed for people with a master's degree or higher from a U.S college or university are exempt from this cap. Once this 20,000 advanced degree exemption has been met, subsequent petitions for advanced degree holders from U.S. institutions are just counted against the regular 65,000 cap, unless otherwise cap-exempt. Because of the cap, the demand for H-1B visas significantly surpasses the limited pool of visas available each year.

New H-1B petitions can be filed beginning on April 1, 2013 , for a person to start working on October 1, 2013 (the beginning of the new fiscal year). Last year, the H-1B cap was met on

June 11, 2012. It is difficult to predict when the H-1B cap will be met this year, but given trends of economic recovery, the cap may be met even earlier this year. We strongly recommend early preparation to enable the filing of H-1Bs petitions on April 1st or very soon thereafter.

It is important to keep in mind that in addition to case analysis and preparation, certain steps must be taken prior to H-1B petition submission. For instance, a certified Labor Condition Application (LCA) must be submitted with the H-1B petition, and it can take about a week or longer to obtain LCA certification from the Department of Labor. When the employee is relying on a foreign degree or on a combination of professional and academic experience to meet the requirements, an academic and/or professional evaluation will likely be necessary to demonstrate that the employee holds the equivalent of a U.S. bachelor's degree for the specialty occupation. Additionally, in some cases, such as when an employee will be sent to a third-party worksite, additional supporting documentation proving the employer-employee relationship may be needed. One such example is known as the "end-client letter."

The issue of providing an end client letter has become particularly problematic in the context of H-1B adjudications for Information Technology (IT) professionals. Many times the end client may be unwilling to provide such a letter as it is against their company policy to provide employment verification letters to contract workers. If this is the case, it is essential that the H-1B employer work with an experienced immigration attorney who can suggest the submission of alternative documentation to convince USCIS that the employee will be performing H-1B caliber duties at the end client, and that the H-1B petitioner is the employer who reserves the right to control and supervise the work of the H-1B employee during the course of the employment.

At Dyer Immigration Law Group, P.C., our attorneys and staff are dedicated to helping our clients successfully navigate the H-1B visa petition process to meet their business and immigration needs. Contact us today.

Call us toll free at 1.877.377.1247 to schedule an appointment at our office in Richmond or Fredericksburg. We speak English, Spanish, Portuguese, French, German and Swedish.

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