Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: Help! I need an H-1B Immigration Attorney to help me. I know there is a deadline approaching to get the H-1B’s filed and I am not sure if I qualify and what the requirements are. Can you help?

Answer: Yes, you should have an H-1B Immigration Attorney help you as there are numerous requirements and if not done properly, the case will either be rejected or denied. The H-1B category is limited to alien workers filling positions in “specialty occupations” for which the alien workers have the necessary credentials. A “specialty occupation” is defined by the INA as an occupation that requires: theoretical and practical application of a body of highly specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. Many times an H-1B Immigration Attorney will be able to do the research to determine if in fact the position is a “specialty occupation”, and if not, the H-1B Immigration Lawyer will be able to work with the employer and employee to determine what position is best for the H-1B.

Question: While I understand that an H-1B Immigration Attorney can do the necessary research to find the best position, are there some generalities as to what types of positions are best for H-1B’s?

Answer: With the elimination of entertainers, artists, and athletes from the H-1B category, over 50 percent of the previous users of the category have been removed from its coverage. According to the latest USCIS statistics and research from various H-1B Immigration Attorneys about 43% of petitions approved were for workers in computer-related occupations. Occupations in architecture, engineering, surveying, education, and administrative specializations constituted another 33% of the total H-1B petitions approved. As to the detailed occupation groups, more than one-third of the approved petitions (37.8%) were for aliens working as systems analysts or programmers. The second largest category (at 8.1%) was occupations in colleges and university education (i.e., university professors and teachers). Accountants, auditors and related occupations constituted another 4.6% of the total, electrical/electronics engineering occupations comprised 3.8% of the total, and other computer-related occupations comprised 3.5% of the total H-1B petitions approved. The latest statistics also reveal that 45% of petitions approved in were for workers with a bachelor’s degree. 37% of petitions approved in FY 2005 were for workers with a master’s degree, 5% had a doctorate, and 12% were for workers with a professional degree (such as a medical or law degree). However, keep in mind that even if you do not have a B.S. Degree, that an H-1B Immigration Attorney can follow the necessary procedures to submit to USCIS an equivalency for the B.S. and/or Master’s degree based on various factors such as an evaluation report, and/or a combination of work, experience and prior education.

Question: What are the numerical limitations for H-1B’s?

Answer: The 1990 Act imposed an annual limit on the number of new admissions in the H-1B category. An H-1B number must be available at the time a new petition is adjudicated. The Service will not approve an H-1B petition once the cap has been reached during a fiscal year if the petition has a date for commencement of employment that falls within that fiscal year. This is the primary reason you want to get an H-1B Immigration Attorney to get the petition prepared as soon as possible and to be submitted when the doors open again on April 1. The Service counts petitions for initial H-1B employment in determining compliance with the annual cap. Petitions for sequential H-1B employment, concurrent H-1B employment, extensions of stay, and amended petitions are not counted against the cap. The annual H-1B cap is set at 65,000. However, overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers are available in the standard H-1B pool, though some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year. Legislation enacted in 2004 created an exemption from the cap for 20,000 advanced degree graduates of U.S. universities. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher against the annual cap of 65,000. Thus, the H-1B Immigration Attorney will attempt to get you under an H-1B requiring a Master’s or higher degree as there may be more available when the normal H-1B’s run out.

Apart from the 20,000 exemption for advanced degree professionals, several types of H-1B cases are exempt from the cap without regard to the number of such cases that are filed. These include: (1) petitions for employment at an exempt organization, such as an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, and governmental research organizations (note, however, that if an H-1B professional moves from an exempt nonprofit organization to a for-profit company, he or she would then be subject to the cap); (2) petitions for an individual who has already been counted against the cap during the previous six years, unless the H-1B applicant would be eligible for a full six years of authorized admission at the time the petition is filed; (3) petitions for J-1 nonimmigrants who are changing status to H-1B and who obtained waivers through the Conrad 30 Program or other federal government programs. Make certain you inform the H-1B Immigration Attorney if you fall under one of these provisions.

The addition of 20,000 H-1B numbers for advanced-degree professionals did not prevent the cap from being reached in subsequent years. In fiscal year 2006, the 65,000 standard cap was exhausted before the start of the fiscal year and the 20,000 advanced degree limit was reached just after the start of the fiscal year. In fiscal year 2007, both the regular and advanced-degree caps were reached before the start of the fiscal year on October 1, 2006 (although the advanced-degree limit was reached at a slightly slower pace). For fiscal year 2008, the 65,000 limit was reached on April 2, 2007, the first day that cases could be filed for new H-1B employment commencing on October 1, 2007, and the advanced-degree limit was reached on April 30, 2007. For FY 2009, H-1B numbers under the standard cap were exhausted within days of the start of the filing season. On April 8, 2008, USCIS announced that, between April 1 and April 7, it had received more than enough H-1B petitions to meet the standard cap and the pool of 20,000 numbers for holders of U.S. advanced degrees for FY 2009. As a result, the agency utilized the new lottery system under a March 2008 rule to select which FY 2009 H-1B petitions would be eligible for adjudication.

Even though last year fiscal year, the H-1B’s lasted longer than normal due to the economic downturn, you should contact your H-1B Immigration Attorney as soon as possible to ensure you get in the next allotment starting on April 1.

Amended H-1B petition

H-1B CAP

H-1B process

H-1B petition had been reached

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