HOW SHOULD YOUR COMPANY PREPARE FOR THE FORTHCOMING H-1B QUOTA ?

The H-1B visa is designated for individuals who possess expertise in a given field.

There are only 65,000 H-1B visas issued in a fiscal year.

H-1B applicants who work for institutes of higher education, nonprofit research institutions or government research institutions, nonprofit institutions that are affiliated with institutes of higher education, or individuals who have possessed an H-1B visa within the past 6 years and have not left the United States for more than a year since obtaining their H-1B visa status are all exceptions to the quota.

It is essential for applicants to hire effective legal counsel.

The best time is NOW! The 2008 H-1B quota was FILLED within three days! This means that those individuals whose paperwork was filed completely, effectively, and as early as possible benefited the most. Since the filing takes place on April 1, 2009, it is essential to obtain the appropriate legal services to assist with the task of completing an H-1B application.

Advance Issues on H-1B

The H-1B cap is a numerical limit set by Congress as to how many workers may be admitted to the United States as H-1B type visa holders or may change from one status, such as B-1, F-1, J-1, etc., to H-1B.

Currently, the cap is set at 65,000. Of this 65,000, 6,800 spots are reserved for citizens of Chile and Singapore under Free Trade Agreements.

Furthermore, the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters' or higher degrees will be exempt from any fiscal year cap on available H-1B visas.

Unused Chile/Singapore visa numbers for a particular fiscal year are to be used within the first 45 days of the next fiscal year.

No, you may try to use the regular quota first if it is available.

Applications for extensions of H-1B status.

• H-1B petitions for concurrent employment where the alien worker is presently in H-1B status that is subject to the cap.
• H-1B petitions to change employers if the alien has been subject to the quota in the past six years.
• H-1B applications sponsored by institutes of higher education (or a related or affiliated nonprofit entity), government or nonprofit research organizations.
• H-1B applications for physicians who received J waivers under a Conrad State 20 Program.

The earliest one can file for H-1B visa/status is 6 months prior to the employment date written on the petition.

The fiscal year begins on October 1, 2007.

The Premium Processing Service for H-1B petitions began on July 30, 2001 wherein by paying an additional fee of $1,000, USCIS will approve the petition, deny the petition, or make a request for additional evidence within 15 calendar days. USCIS will refund the $1000 fee if it does not adjudicate a case within the required 15 calendar days.

Premium processing begins on the day the USCIS physically receives a petition or application and ends the day that the Service issues a notice or request. If the USCIS does not issue a notice or request within 15 calendar days, the Premium Processing Service fee will be refunded, however the case will continue to be handled. If a given application or petition is not eligible for the Premium Processing Service, the fee will be refunded and the case will be processed under regular circumstances.

A completed Form I-907, Request for Premium Processing Service, may be filed with a new application or petition, or filed for a pending application or petition. The fee for the Premium Processing Service is $1000, which must be paid with a separate check. It is set by law and cannot be waived for any reason.

Under the current immigration law, an alien may remain in the United States with H-1B status for up to six years. For the purpose of this limitation rule, all time previously spent in H-4 and/or L status in the United States will be counted against the six-year limit.

As per the current law, there are only two situations in which an H-1B status holder can extend his/her visa status beyond the 6-year limit.

• If the H-1B holder has filed either a Labor Certification application or an I-140 petition 365 days before the expiration of the six-year limitation, and the LC or I-140 process is still pending, the H-1B visa holder may extend his or her H-1B on an annual basis beyond the six-year limitation. There is no upper limit on total years in H-1B extension under such a circumstance as long as the immigration process is still ongoing.
• If an H-1B visa holder has an approved I-140 petition AND the immigrant visa number is not available for him/her due to the visa number retrogression (not eligible to file I-485 due to visa number limits), the H-1B visa holder may extend his/her H-1B on a three-year interval beyond the 6-year limitation. There is no 365-day requirement for this circumstance.
  

As of November 27, 2002, a memorandum has been issued by the INS (now called USCIS) to its adjudication officers providing guidance on adjudication of H-1B petitions for Registered Nurses (RNs).

Under current law, an H-1B petition may only be approved if the offered position is in a 'specialty occupation,' which is defined in the Immigration and Nationality Act as one that requires 'theoretical and practical application of a body of highly specialized knowledge' AND 'attainment of a bachelor's, or higher, degree in the specific specialty or its equivalent.' Further, if a particular state requires a license for one to practice his/her occupation, the license is likewise required in order to obtain an H-1B approval.

Those requirements have long been a problem in the nursing profession, as the minimum requirement to be licensed as a Registered Nurse (RN) is generally a two-year degree in nursing (A.D.N.), rather than a four-year bachelor's degree. Many RNs, therefore, would not qualify for the H-1B classification from the USCIS. However, it is well established by the USCIS that a petitioning employer may demonstrate that a particular RN position could qualify for an H-1B by showing the following:

• That a bachelor's or higher degree (or its equivalent) normally is the minimum requirement for entry into that particular position.
• That the degree requirement is common in the industry to parallel nursing positions.
• That the employer normally requires a degree or its equivalent for the position.or
• That the nature of the position's duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's, or higher, degree (or its equivalent).
  

In determining how the educational requirement translates to comparable experience, USCIS uses the formula that three years of specialized training and/or work experience is equal to one year of college-level training.

The latest memorandum confirms the above well-established requirements, and further provides much-needed clarification on which nurses may be eligible for H-1B classification at a time when more and more hospitals and health care facilities are searching for foreign nationals to fill the desperate nursing shortage in the U.S.

• The first class of nurses who generally will qualify for H-1B approval comprises those who are certified advanced practice registered nurses (APRNs). Typically, APRN certification is required for: clinical nurse specialists (CNSs), certified registered nurse anesthetist (CRNAs), , certified nurse-midwives (CNMs), or certified nurse practitioners (NPs). If an APRN position requires the employee to be certified in that practice, the nurse must be an RN, possess at least a Bachelor of Science in Nursing, and some additional, graduate level education.
• The second class of nurses who may qualify for H-1B approval comprises those in administrative positions requiring graduate degrees in fields such as nursing or health administration.
• The final class of nurses who may qualify for H-1B approval includes those who have a nursing specialty such as critical care and peri-operative nurses, or who have passed examinations based on clinical experience in school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology, and pediatrics, but who are not APRNs. In these cases, the petitioner must show that the nature of the particular position is so specialized and complex that one would normally expect the person performing the duties to have attained a bachelor's or higher degree, or its equivalent.