Applicants and employers who plan to avail of H-1B visas to the United States, which are subject to fixed quotas, for the fiscal year 2010, should begin preparations early.

The United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B visa petitions for the fiscal year 2010 from Wednesday, April 1, 2009.

The earliest that applicants can begin working on these visas in the US is October 1, 2009, which is the start of FY 2010. Last year, the quotas were exhausted within the first week of the filing season.

As part of the H-1B process, the employer is required to receive a certified Labor Condition Application (LCA) from the United States Department of Labor (DOL) before the H-1B petition can be filed with the USCIS. However, it is important to note that the processing time for the H-1B visas is likely to increase dramatically this year.

Currently, the LCA is produced and certified almost instantly upon electronic submission to the DOL's web-based application centre. The new certification process for the LCA may possibly take seven or more days if the changes are introduced.

Earlier it was possible to expedite last minute requests for new employees, but this will be highly unlikely if the process is delayed, though there is no intimation of that as yet.

The H-1B quota

The USCIS grants 65,000 H-1B visas each year and since 2004 an additional 20,000 H-1B visas have been granted to individuals with Master's or higher degrees obtained from the US. Out of the 65,000 visas, a special quota is reserved for Chile and Singapore nationals under free trade agreements between the US and those countries.

In recent years, the demand for H-1B visas has far exceeded the supply. For instance, in FY 2008, the USCIS reported that it received 133,000 petitions on April 2 and April 3. In 2007, April 1 fell on a Sunday. For the very first time, the USCIS conducted a computer-generated random selection of petitions filed on the first and second day of the filing period to select only a limited number of cases allocated under the H-1B cap.

The USCIS also announced that the Master's cap for FY 2008 was reached on April 30, 2007 and petitions that were received on April 30, 2007 under the Master's cap were also subject to a random selection process.

With regard to applications for FY 2009, the USCIS announced that it had received more than the number of H-1B petitions for both the 65,000 and 20,000 cap during the 5-day filing period. In addition to providing a 5-day window when the USCIS accepted applications, the USCIS also stipulated that if it received more than one H-1B petition on behalf of the same alien for the same position both the applications would be dismissed and the fees forfeited.

The numerical limitation of 65,000 does not apply to a non-immigrant who is sponsored for an H-1B visa by an institution of higher education and non-profit entity related to or affiliated with any such institution.

Nor would it apply to an H-1B visa petition that has been filed by a non-profit research organisation or a governmental research organisation.

The quota restrictions do not apply to J-1 physicians who have been sponsored for a J-1 waiver by a federal or state agency or to H-1B extension requests. The quotas for Singapore and Chile have never been reached to date.

The USCIS reportedly plans to issue a rule in the spring or summer of 2009 to streamline the H-1B paperwork required to participate in the fiscal year 2010 lottery.

The rule would propose a 'pre-registration' system with a shorter application required for the lottery, and the full H-1B petition required for lottery winners. However, that system will not be in place for this April's H-1B rush.

The H-1B process

An employer who needs the temporary services of a foreign national must demonstrate that both the job requirements and the foreigner's credentials or experience are 'professional.' Beneficiaries who have four-year Bachelor's degrees, equivalent to the US Bachelor's degrees, usually qualify as professionals.

Beneficiaries from India, where a Bachelor's degree usually involves three years of college education, require an additional year of education or experience. Individuals with foreign qualifications must obtain credentials evaluations and/or translations if required.

The employer must also meet Department of Labor (DOL) requirements (described below) and file a petition with the USCIS for permission to employ the qualifying foreign national. If the employee is out of the country, he or she must also apply for the visa at a US Consulate abroad upon receiving approval of the petition from the USCIS.

The Labor Condition Application

Prior to filing the H-1B petition with the USCIS, the employer must certify to the DOL with respect to the foreign worker, that

(1) it will pay the higher of what it pays its own similar workers or what similar workers in the area are paid (whichever is higher);

(2) the working conditions of its US workers are not adversely affected;

(3) there is no strike/lockout at the worksite nor in the occupation for which a foreign professional is sought; and

(4) it has given notice to current employees that it is seeking to hire an H-1B professional.

The DOL certifies receipt and acceptance of the attestation in order to create a public record and the original signed copy of this should be filed with the petition. The employer must also post the labor condition application for 10 days and maintain a wage file that is open to the public.

There are special provisions that apply to H-1B dependent employers. Generally, US employers of 51 or more individuals whose workforce comprises 15 per cent or more H-1B workers are considered dependent employers.

Smaller employers are allowed a slightly higher ratio of H-1Bs to their total workforce. H-1B dependent employers must additionally attest that they will not displace a U.S. worker 90 days before and after filing the visa petition for a foreign worker.

Further, they must attest that they have taken good-faith steps to recruit in the US using industry-wide standards and that they have offered the position to any US worker who applies and is equally or better qualified than the H-1B worker.

Dependent employers who pay H-1B workers a salary of $60,000 or who employ a person with a Master's degree are exempt from the additional H-1B dependant employer attestations.

Employers must follow through on attestations or they are in violation of law and could be required to pay wages, incur civil penalties and be debarred from the program. The DOL initiates investigations of employer practices through both a formal complaint and its own investigation processes.

Filing the petition with the USCIS

The employer must submit a request to the USCIS, proving that it has completed the Labor Condition Application process and demonstrating that both the employer and the foreign professional qualify for the visa category. The employer must submit a fee of $320.

In addition, all employers applying for H-1B visa petitions must pay the new $500 'fraud prevention' fee for each petition seeking an initial grant of H-1B non-immigrant classification or those petitions seeking to change an employer within those classifications.

The $500 fee will not apply to amendment or extension petitions filed by the same employer. The employer may expedite the petition through premium processing, by paying an additional $1,000 filing fee whereby the USCIS will adjudicate the case within 15 days.

As of December 8, 2004, employers must also pay a supplementary fee of $1,500. If the employer has 25 or fewer full-time employees including any affiliates or subsidiaries must pay $750.

Some employers may be exempt from the training fee. Employers will also be exempt from the training fee if they are filing a second H-1B extension on behalf of the foreign national employee.

In the petition the employer must demonstrate

(1) the need for someone who is a professional,

(2) that the job requires a worker with at least a bachelor's degree, and

(3) that the prospective employee has the required degree or an equivalency analysis for a foreign degree along with any other required qualifications.

H-1B visa application

If the professional is already in the US in another visa category or status, the professional can file petition with the USCIS for a change of status to H-1B.

The new status will be indicated on the person's I-94, but is not a travel document. In order to travel and re-enter the US in H-1B status, a visa must be obtained at a US Embassy or Consulate abroad.

Once the petition is approved by the USCIS, if the professional is outside the US, he or she must apply to a US consulate for an H-1B visa.

The US consular officer adjudicates the application to determine the alien's admissibility before granting the visa.

Conclusion

Although certain categories of workers are exempt from the H-1B cap, there is no doubt that the 65,000 H-1B visas available for most jobs in 'speciality occupations' will be used up by mid-summer. With that in mind, employers desiring to hire professional workers under the H-1B category would do well to file their petitions early, or risk being shut-out until April 1, 2010 when the quota reopens for FY 2011.

Despite the economic downturn it is expected that like every year, there will be a mad scramble for available H-1B visa numbers.

Poorvi Chothani, Esq (LL.M.-University of Pennsylvania, USA, Solicitor-England and Wales. Poorvi, admitted to the Bar Council of Maharashtra and Goa and the New York State Bar) is the founder of LawQuest, a general practice law firm headquartered in Mumbai, India and can be reached at info@lawquestinternational.com

Disclaimer: The information is not a comprehensive consideration of the subjects discussed and is intended to provide general information. Readers should not conclusively rely on the information as legal advice and should seek independent counsel before any action is taken with respect to these or other specific issues.