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H-1B cap reached for fiscal year 2011

By Atty. Daniel Hanlon

On January 27, 2011, the USCIS officially announced that it had received more than enough H-1B petitions to reach the annual “cap” for Fiscal Year (FY) 2011. Although H-1B visas remained available for almost four months into the fiscal year, that the category was completely exhausted with nearly 8 months remaining until FY 2011 ends is conclusive evidence that the cap is woefully inadequate, even in a weak economy. Advocates are calling on Congress to raise the cap to accommodate more professional workers as the economy improves.

Each year, the USCIS is authorized to approve up to 65,000 H-1B Petitions for foreign workers in “specialty occupations,” or those requiring a Bachelor’s degree or higher; and an additional 20,00 visas for workers holding US Master’s Degrees of higher. Over the past several years, the H-1B visa quota has not lasted through the fiscal year (October 1 to September 30) and the quota has usually been exhausted within a few weeks, if not days, of the H-1B quota opening date of April 1st. Last year, however, the H-1B visa quota was not exhausted until December, meaning that H-1B visa numbers were available for more than two months into the new fiscal year, due to the economic downturn in the US. With signs of the economy improving day-to-day, 2011 may see an early exhaustion of H-1B petitions as in years prior to the recession.

Since the sunset of the provisions of the American Competitiveness in the 21st Century Act (AC-21) in 2002, which had raised the annual number of H-1B visas to 195,000, the “H-1B cap” has been reached in each of the several years leaving thousands of professional workers and employers seeking to hire them out of business. The annual cap of 65,000 is grossly inadequate to accommodate businesses, as has been made obvious over the past few years, with the cap reached within a few days of April 1, 2008, despite the US economy experiencing a deep recession.

Employers seeking to hire an H-1B professional must establish that the prospective employee: (1) has a bachelor’s degree; (2) seeks to come to the United States to perform services in a position requiring a bachelor’s degree or higher for entry into the position; and that (3) the degree is directly related to the nonimmigrant’s field of endeavor. The U.S. employer or sponsor must demonstrate a need for a worker and attest that insufficient domestic labor is available to fill the need. Of course, the U.S. employer must also establish his ability to pay the “prevailing wage” for the position.

If the intended worker is overseas, he may obtain an H-1B visa from the U.S. Embassy upon USCIS approval of a Petition in the U.S. A nonimmigrant visitor in the United States, for instance on a B-2 visa, may apply for “change of status” from visitor to H-1B professional worker. The new status will be indicated on the person’s I-94, but is not a travel document. In order to travel and reenter the United States in H-1B status, a visa must be obtained at a U.S. Embassy or consulate abroad.

The number and types of occupations that will qualify people for classification as H-1B professional workers are constantly expanding. With the development of so many new highly specialized occupations in the high-tech industries, more and more H-1Bs are necessary to fill the demand, and to maintain the status quo for more traditional occupations such as accountants and engineers.

The H-1B quota for FY 2012 may file their petitions as early as April 1, 2011, for work to commence on October 1, 2011. With that in mind, employers desiring to hire professional workers under the H-1B category would do well to file their Petitions early, or lose any opportunity to petition a necessary professional worker until April 1, 2012 when the quota reopens for FY 2013.

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Daniel P. Hanlon has been practicing Immigration and Nationality Law exclusively since his admission to the California State Bar in 1993. Mr. Hanlon is the founder of Hanlon Law Group, a P.C. He has argued many important immigration appeals before the United States Court of Appeals for the Ninth Circuit, and successfully challenged INS rulings in the United States District Court for the Central District of California. Mr. Hanlon’s experience spans several years, and covers a broad range of immigrant and nonimmigrant visa petitions, including those for working professionals, multi-national managers, treaty-traders, investors, athletes and entertainers. Mr. Hanlon also has vast experience in all family-based Petitions and in labor certification applications under both Department of Labor-supervised recruitment and Reduction in Recruitment methods. Over the past several years, Mr. Hanlon has tried thousands of cases in Immigration Court involving Requests for Asylum in the United States, Cancellation of Removal, and Waivers of Grounds of Removability. Mr. Hanlon graduated “With Distinction” from the University of Michigan at Ann Arbor in April 1988, with a Bachelor of Arts degree in English. In May 1993, Mr. Hanlon graduated from Loyola Law School in Los Angeles. He is a member of the American Immigration Lawyers Association, of which he sits on the Investors Committee. Mr. Hanlon has also appeared as a speaker before the Los Angeles County Bar Association, Immigration Section, on the 1996 immigration law amendments. Hanlon Law Group, P.C. is headquartered at 225 S. Lake Avenue, Suite 1100, Pasadena, CA 91101, tel: (626) 585-8005, fax: (626) 585-8595, website: www.hanlonlawgroup.com, email: visas@hanlonlawgroup.com.

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