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The first day of filing for the upcoming H-1B quota for fiscal year 2011 is April 1, 2010. In previous years all 65,000 H-1B visas were utilized on the first days of filing. Last year, despite the economic recession, the cap was still reached. With a recovering economy, it is imperative that all employers and individuals interested in an H-1B visa begin preparing their petitions immediately. Frequently Asked Questions about the H-1B Visa: What is the H-1B cap? The H-1B cap is the annual limit in the number of H-1B Visas. The cap, determined by Congress, is set at 65,000 visas per year. Out of the 65,000 visas 6,800 visas are set aside for nationals of Chile and Singapore. An additional    20,000 visas are available to individuals with a masters’ or higher degree from a U.S. educational institution. Only new employment is covered under the cap (any person counted against the cap in the last 6 years is not recounted). Is anyone exempt from the cap? Yes, some individuals hired by universities and/or their non-profit affiliates are exempt from the cap. When can I file my H-1B Petition under the FY2011 quota? The earliest date an FY 2011 cap subject H-1B petition can be filed is April 1, 2010. Before the petition can be filed, employers must submit a Labor Condition Application (LCA) to the Department of Labor (DOL) under the new iCERT system. Under the new iCERT system, the DOL requires the Employer’s Federal Employer Identification Number to be verified which often creates a 2-4 day delay. Subsequently, the LCA must be filed. LCAs are generally certified in 7 business days. Only after the LCA is certified, with limited exception, can the H-1B petition be filed. In other words, it is imperative to start the H-1B petition as soon as possible. Once I am approved under the FY 2011 cap can I commence work for my employer? No. Under the FY 2011 cap an individual with an approved H-1B petition cannot begin work until October 1, 2010 or the start date stated on the H-1B petition, whichever is later. If I am approved on an H-1B visa under the FY 2011 cap can I legally remain in the United States until that time? Your authorized period of stay is determined by your current I-94. If your authorized period of stay ends before October 1, 2010 you may have to depart the United States and consular process your visa. I am a student and have OPT should I be worried about the quota? You should consider the authorized work period you have or will receive under OPT. Remember once the FY 2011 quota is reached you will not be able to file an H-1B petition under FY 2012 until April 1, 2011 for an October 1, 2011 start date. What types of positions qualify for an H-1B visa? An H-1B specialty worker visa is for foreign workers coming temporarily to the United States to perform work in a specialty occupation (i.e. sciences, medicine, healthcare, education, technology, accounting, business specialties etc).  A specialty occupation is one that requires the theoretical and practical application of highly specialized knowledge requiring the completion of a specific course of higher education. Generally, in order to qualify for H-1B classification, the applicant must have at least a U.S. bachelor's degree or its equivalent and the job sought must require at least a bachelor's degree or its equivalent. Can my dependents accompany me if I receive an H-1B visa? Yes, spouses and unmarried children under the age of 21 can apply for an H-4 visa. H-4 visa holders may not work in the United States but may attend school. Further, your domestic servant may be eligible to accompany you on a B-1 visa. Manju K. Bhavnani, Esq. has successfully represented thousands of clients. The Law Offices of Manju K. Bhavnani is located at 9107 Wilshire Blvd., Suite 500, Beverly Hills, CA 90210 Tel: (310)550-1227. The analysis and suggestions in this column do not create an attorney-client relationship and are not intended to be specific legal advice on any specific situation. |
