21 February 2017

H-1B Cap Season is Almost Here!

On April 3rd, 2017, USCIS will begin accepting new H-1B petitions subject to the cap for Fiscal Year 2018. If you plan to hire a professional, foreign worker, you should begin preparation for the H-1B visa process now. Based on last year’s numbers where USCIS received 236,000 H-1B petitions during the filing period, the cap will most certainly be reached in the first week of April 2017. If you miss the opportunity to file a new H-1B petition this year, you will not have the opportunity to file until April 2018.

U.S. employers use the H-1B visa program to temporarily employ foreign workers in specialty occupations. The job must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree
  • The employer normally requires a degree or its equivalent for the position
  • The nature of the specific 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.

For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment

The current annual cap (from the period starting October 1st and ending on September 30th) as set by Congress for new H-1B petitions is 65,000 (regular cap). An advanced degree exemption is available for the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher (master’s cap). Please note, you should only apply under the master’s cap where the U.S. educational institution satisfies the master’s cap requirements. Therefore, it is important to discuss this issue with a qualified immigration attorney before submitting your petition under the master’s cap.

If the cap is reached within the first week of the new filing season, a lottery system will be implemented for petitions to be selected at random. The lottery system will first be conducted for the advanced degree exemption petitions. Once that has been reached, any petitions filed and not selected for beneficiaries with a U.S. master’s degree or higher will count against the regular cap, unless exempt for other reasons.  The same lottery system will then be used for the regular cap. Note, if a petition is filed and not selected in the lottery, it will be returned with all government filing fees. If your petition is selected in the lottery, it will be reviewed by a USCIS Officer. An Officer can send an approval (yay!), an RFE, or a denial notice.

Again, the annual H-1B numerical quota is expected to be reached in the first week of April. Therefore, employers who have plans to use the H-1B program are recommended to begin the filing process as early as possible. Individuals should also begin gathering all required documentation needed in order for the employer to timely file on your behalf.

Direct: 713-457-5703; Email: Krystal@rnlawgroup.com

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Posted February 21, 2017 by KrystalAlanis in category "H-1B