H1B Visas for FY 2008
The U.S. Immigration Service is anticipating that the H1B Visa Cap for FY 2008 will be reached even faster than the previous years.
We are urging any employer who is thinking of hiring/employing a foreign national on an H1B visa for fiscal year (FY) 2008 must begin
the preparation and processing of the case as soon as possible so that the H1B Petition may be filed with the U.S. Citizenship and
Immigration Services (USCIS) on April 1, 2007. The cap for FY 2007 was reached on May 26, 2006, well before the fiscal year began on
October 1, 2006. Because the H1B Visas are limited, a lot of employers are already preparing thousands of petitions for immediate filing in April.
Accordingly, we advise all employers to file H1B visa petitions for prospective employees on April 1, 2007, or immediately thereafter as the cap is anticipated to close early again.
The maximum allotted visas authorized by Congress are 65,000 new H1B visas per fiscal year with some exceptions. The first 20,000 H1B visas issued
to alien workers who obtained their master's degree here in the U.S. are exempt from the 65,000 cap; H1B visas issued to such individuals
subsequent to the first 20,000 are then counted against the overall 65,000 cap. Some U.S. Senators have proposed increasing the cap, but such
legislation is yet to be passed by Congress. Foreign nationals in the U.S. in lawful H1B status who are seeking to extend their visa or change
employers are not affected by the annual limit.Employers should also consider that the foreign national who they intend to employ must be in
lawful non-immigrant status which must be valid until October 1, 2007 which is the affectivity date of that approved H1B Visa. Should the
foreign national not meet this requirement, for example a person in B-2 or Tourist visa may elect to have his/her B-2 tourist visa extended
so that they may bridge the gap between the time their authorized stay (I-94) expires until October 1, 2007. If extending the B-2 tourist
visa is not an option, the foreign national may then leave the U.S. and return to their home country before their authorized stay (I-94)
visa expires and obtain their H1B visa at the U.S. Embassy in their home country.
H1B visas are only issued to foreign nationals employed in a "specialty occupation" or as a fashion model of distinguished merit and ability.
The U.S. Immigration regulations states that a "specialty occupation" is an occupation that requires theoretical and practical application of
a body of specialized knowledge and attainment of a bachelor's degree or higher in the specific specialty as a minimum qualification for entry
into the United States. Examples of H1B occupations include accountants, engineers, computer programmers, teachers, marketing analyst, etc.
As part of the Labor Condition Attestation all H1B workers must be paid the wages and benefits equal or greater than U.S. workers in the same
type of profession or field so that it will not adversely affect the wages and labor conditions for U.S. Citizen workers.
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H1B workers are subject to a limitation of six years; upon completing six years' employment in H1B status, they must depart the U.S. for one year
before commencing new H1B employment but there is a provision under the U.S. Immigration Law called the American Competitiveness in the 21st
Century Act of 2000 ("AC21" ) which allows H1B workers to extend their employment beyond six years if certain requirements are met. A new memorandum
released by the USCIS also clarified that any time spent as an H-4 dependent will not count towards the six-year limitation in H1B status.
This memo also provided that a foreign national who was in the U.S. in valid H1B status for less than the six-year maximum period of admission,
but has since been outside the U.S. for more than one year can elect to either: (1) be re-admitted for the "remainder" of the initial six-year
admission period without being subject to the H1B cap if previously counted, or (2) seek to be admitted as a "new" H1B alien subject to the
H1B cap. Employers who intend to employ a foreign national on an H1B visa for FY 2008 must begin the process now so that they may timely file
the H1B visa petitions on April 1, 2007, the date that filings for initial H1B visas are accepted by the US Immigration Service. Since the
H1B visas has become more and more complex and filings timely is crucial, U.S. employers who intends to employ foreign workers on H1B visas
are advised to consult a knowledgeable and experienced U.S. immigration attorney.
Related Articles: USCIS REACHES FY 2008 H-1B CAP
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