H1B Visa Lawyer Blog

June 4, 2008

FY2009 H1B Cap Filing Update

U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2008 nearly 163,000 H-1B petitions received during the filing period on April 1 to April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption. On April 14, 2008 USCIS conducted the computer-generated random selection processes on H-1B petitions to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication.

USCIS conducted random selections, first on petitions qualifying for the 20,000 “U.S. master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap. Petitioners whose properly filed petitions have been selected should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives, unless found to be a duplicate. The total adjudication process is expected to take approximately eight to ten weeks.

USCIS has “wait-listed” some H-1B petitions, they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.

May 31, 2008

Alternatives to the H-1B Visa for individuals who did not make the H-1B Quota

by Kellie N. Lego

Now that the H-1B lottery has been held and all of the new H-1B visas for the 2008 fiscal year have been allocated, what options do employers who are looking to hire foreign national professionals have? Here are some creative solutions to this problem:

H-3 Visa

The H-3 Visa is not an alternate visa option for anyone who would be eligible for an H-1B visa. However, it is an alternative option for individuals who would benefit from a training program. This category does not apply to physicians.

May 30, 2008

H-1B Petitions: When Should You as the Employer Amend or Terminate Them?

by Kellie N. Lego

H-1B petitions filed on behalf of employees are generally filed for a specific job that has specific job duties. When there is a material change in the terms of an H-1B beneficiary’s employment, the petitioning employer is legally required to file a new H-1B petition or amend the original petition.

What is a material change?

A material change is a change to the H-1B beneficiary’s job that substantially changes the terms and conditions of the H-1B employee’s job. The following are examples of material changes to a job for H-1B purposes:

May 29, 2008

H-1B Visa: An Option for Owners and Managers of U.S. Businesses

by Kellie N. Lego

Although the H-1B Visa is not usually thought of as an option for an investor/entrepreneur, it may be utilized by some of these foreign business entrepreneurs. Foreign investment in U.S. businesses creates economic benefits beyond merely a visa benefit for the foreign investor. The Small Business Administration (SBA) estimates that 99 percent of the firms in the United States are small businesses, and small firms have generated 60 to 80 percent of the net new jobs annually over the past decade. It is estimated that these small businesses employ 41 percent of the United States’ high-tech work force. These days, immigrants have an ever increasing role in the creation of these small businesses. For instance, in the 1990’s, Immigrant-operated companies accounted for $19.5 billion in sales and 72,839. Twenty-nine percent of these companies were in the technology sector.

Prohibition on Self-petitioning

For H-1B purposes, the United States Citizenship and Immigrations Service’s (USCIS) regulations define a U.S. employer as a “person, firm, corporation, contractor, or other association, or organization in the United States which: