H-1B petitions can be filed up to six months ahead of the employment starting date, i.e., to start the employment on October 1, the petition can be filed on April 1. In 2007, the USCIS received 123,480 petitions during the first two days of filing. In 2008, the filing period was kept open for the first five business days in April, and more than 163,000 petitions were filed.
H-1B visas are granted by the US Citizenship and Immigration Services (USCIS) to foreign nationals to work in "specialty occupations" that require a minimum of U.S. bachelor's degree or equivalent. Currently the worldwide quota for a fiscal year is 65,000 visas, out of which 6,800 are reserved for nationals of Singapore and Chile. The fiscal years runs from October 1st to September 30th of the following year. Additionally, there is a special quota of 20,000 visas available for holders of advanced degrees from US graduate schools.
The following classes of U.S. employers are exempt from this quota:
- Institutions of higher education as defined in the Higher Education Act of 1965, section 101(a), 20 USC Section 1001(a);
- Nonprofit organizations or entities related to or affiliated with an institution of higher education, as such institutions of higher education are defined in the Higher Education Act of 1965, section 101(a), 20 USC section 1001(a);
- Nonprofit research organizations or governmental research organizations as defined in 8 CFR 214.2(h)(19)(iii)(C).
H-1B petitions can be filed up to six months ahead of the employment starting date, i.e., to start the employment on October 1, the petition can be filed on April 1. In 2007, the USCIS received 123,480 petitions during the first two days of filing. The so-called “H1B lottery” was resorted to, to pick enough petitions to meet the quota cap. Since the master’s quota cap was not reached until much later, no lottery was resorted to for that category.
In 2008, the filing period was kept open for the first five business days in April, and the USCIS received more than 163,000 petitions, including 31,200 against the advanced degree quota. This time the lottery was conducted for both regular quota and advanced degree quota petitions.
The petitions not selected in the lottery are returned to the Petitioners (or their attorneys) along with the filing fees. Petitions can be filed again only in April of the following year.
This scenario makes it extremely important to be prepared well in advance. In spite of all arguments about the bad economy and layoffs, there is still a possibility that there could be more than enough petitions this year than the quota. Attorneys will need enough time to gather all the relevant information; prepare the petitions accurately and get them signed by the employer; make sure all evidentiary documents and checks are attached; and send the petitions out so as to reach USCIS positively before the quota gets capped. It is extremely important to follow all of these steps with utmost care. USCIS could return the petition as incomplete for any number of reasons, such as, petitioner omitting to sign at one or more places, attaching the wrong amount of filing fees, post-dated checks, or even for the filing fee check amounts being different in numbers and words! If a petition is returned as incomplete, a precious year (and of course a chance at the lottery) is lost!
We would strongly advise to contact an attorney latest by the middle of March, as attorneys tend to get extremely busy during the second half of March.
Contrary to what some people believe, filing a petition with “Premium Processing” will not help anyone to jump the quota cap. Premium processing only guarantees a faster decision from the USCIS. It does not protect one from the quota limit.
Disclaimer: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.
Copyright: The Law Offices of Morley J. Nair, Inc.
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