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Employers and employees need to get started on the H-1B process now. It is time to prepare job descriptions, obtain Prevailing Wage Determinations (PWDs), post notices and submit Labor Condition Applications (LCAs) to the Department of Labor.
On April 3, 2017, the USCIS will begin accepting H-1B petitions. Since there is an annual numerical cap of only 85,000 H-1B visas (65,000 for the general cap, and 20,000 for those with advanced degrees in the US), the USCIS holds 2 lotteries for H-1B petitions.
During each of the last 2 years, the USCIS received over 230,000 H-1B petitions annually from cap-subject H-1B employers, almost 3 times the number of visas available.
Knowing that there is only a 1 in 3 chance that an H-1B petition that they submit could be chosen in the lotteries, file 3 times as many H-1B petitions for each job that they wish to fill. USCIS filing fees for petitions not chosen in the lotteries are refundable. Attorney fees are not.
Certain jobs are exempt from the H-1B numerical caps. These include employment “at” universities, at “affiliated” or “related” organizations or at non-profit or government research institutions. USCIS has recently published new rules which broaden these categories.
It is very important that properly completed H-1B petitions be submitted to the USCIS on a timely basis.
A properly completed H-1B petition will include the following documents:
A certified LCA showing that the employer agrees to pay the beneficiary at the prevailing wage for the position or the actual wage, whichever is higher;
Evidence that the employer has the ability to pay the above salary;
Evidence that the occupation requires a minimum of a bachelor’s degree in the field of specialty; and
Evidence that the H-1B professional’s educational credentials and/or experience are sufficient to meet the requirements of the position.
Upon approval of an H-1B petition, the professional will be able to commence his or her employment on October 1, 2017. If the professional is in the US in a nonimmigrant status, the H-1B petition should also include an application for a change of status. Otherwise, a professional can apply for an H-1B visa at a US Embassy/Consulate in his/her home country and come to the US 10 days prior to October 1, 2017.
The initial period of employment in H-1B status is granted for up to 3 years and may be extended for an additional 3 years. H-1B professionals whose employers have taken timely steps to apply for permanent residence on their behalf may receive post-6th year extensions. Once an H-1B professional has been counted towards the H-1B cap, he or she can obtain H-1B extensions and change employers without regard to the cap.
While most H-1B professionals are educated abroad, a large number are educated in the US. Generally, these persons have obtained their undergraduate or graduate degrees in the US while in F-1 status. F-1 students can obtain Optional Practical Training (OPT) upon graduation and are able to work for their employers for up to 1 year prior to obtaining H-1B status. In addition, they may qualify for automatic extensions of their OPT work permits after April 3, 2017 under USCIS’ “cap-gap” rule.
For persons with degrees in a STEM (Science, Technology, Engineering or Mathematics) field, if their employers participate in the E-Verify program, they can extend their OPT work permits for an additional 24 months whether or not they are selected in either of the H-1B lotteries.
Meanwhile, bills are being introduced in Congress to dramatically reform the present H-1B system. One, the H-1B and L-1 Visa Reform Act, would abolish the lottery and give priority for H-1B visas to foreign students who graduate from universities in the US.