The Law Offices of Robert Nadalin

What Is The H-1B? When Should An Employer Seeking The H-1B Start The Process?


Now is the time to begin planning for the upcoming H-1B cap filing season. H-1B is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS will begin accepting petitions for Fiscal Year (FY) 2019 H-1B visas from April1, 2018. The soonest these visas can be used for work authorization will be October 1, 2018, which is the start of 2019.

As Long As The Petition Is Submitted By April 1, Will The Employee Receive A Visa?

In the past few years, the quota has been oversubscribed and the petitions received within the first 5 days of the filing season have been subjected to a lottery. This is also likely to be the case in the present year Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by the CIS will not be affected.

What Other Options Does An Employer Have If Their Petition Is Not Assigned A Visa Number?

Some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, 0-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact our office for any specific questions that you may have regarding employees you may be considering for H-1B status.

For Cases That Are Selected By USCIS To Receive An H-1B Number, Is Visa Issuance Guaranteed?

USCIS has become increasingly strict in its adjudications of H-1B matters. They have also moved to narrow the scope of what does or does not qualify as a specialty occupation, especially with regard to IT-related positions. Prior proper planning requires working closely with the attorney to confirm that the proposed job duties meet the regulatory definition of the specialty occupation. The Department of Labor’s Occupation Outlook Handbook can be a useful tool for confirming the nature of the position, and there may be other additional sources of information that may also support the petition. It is important to keep in mind that the H-1B process has become more challenging and difficult than in previous years.

Are There Any Changes To Current H-1B Laws On The Horizon?

There have been a number of proposed changes over the years, but none has made it through the legislative or regulatory process so far. There has been a rumor that USCIS may seek to change and limit the definition of specialty occupation. That would require a written notice to the public with an opportunity for interested parties to comment. So far, no such notice has been issued.

What Aspects Of The H-1B Program Are Most Likely To Change?

Although no definite announcement has been made so far, aspects regarding an increase in the required wage rate to be paid, limitations on the ability of employers to place employees at third-party worksites, and a requirements to confirm an unavailability of U.S. workers are all aspects of the program that have a significant chance of being changed.

For more information on H-1B Visas For Employers In US, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (619) 234-8875 today.

The Law Offices of Robert Nadalin

Contact Us Now for an Assessment of Your Needs - Call (619) 234-8875

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