H1B Visa Overview:
H-1B is the Non-immigrant worker status that is made available to U.S. companies to hire individuals from foreign countries to fill professional level jobs. Only 65,000 visas are issued every year (known as "H-1B Cap") during the government fiscal year which runs from October 1st, to September 30th each year.
On December 21, 2009: All 65,000 H-1B cap-subject petitions for Fiscal Year 2010 had been filed. H1B petitions for the 2011 Fiscal Year can start to be filed on April 1st, 2010.
For individuals with Master’s degrees earned at an American university, there is an additional 20,000 visas that are also issued under a separate quota. Although companies are given the opportunity to reserve the visas for their prospective employees beginning April 1st of every year, The first issuance of H-1B status does not actually take effect until October 1st. That means, new employees (except for those subject to the OPT exception explained below) with an H-1B visa for the Fiscal Year 2011, cannot start working for their employer before October 1st, 2010.
Extension of Optional Training Program for Qualified Students with STEM Degrees and E-Verify enrolled companies
Qualified F-1 visa holders can extend the period of their OPT (Optional Practical Training) from 12 to 29 months for those students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program.
Extension of Optional Training Program for Students with a pending H1B petition
The rule also addresses situations in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H1B visa program. The interim final rule addresses this by automatically extending the period of stay and work authorization for all F-1 students with pending H1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.
For the fiscal year 2010, the 65,000 visa cap was reached on December 21st, 2009 and no other filings could be accepted after that date for new H-1B Petitions filed under the initial 65,000 quota for the current Fiscal Year 2010.
With the Economy recovering for this coming H-1B season for Fiscal Year 2011, it is critical that employers complete their recruitment before the date of April 1st and to have their immigration counsel prepare all of the cases for filing by March 30, 2010 to have better chances of securing their visas. Our firm typically begins accepting requests for H-1B petitions during the months of January through March to be able to meet the March 30th filings.
Filing for first-time H-1B status for an employee already living in The United States:
If the employer is filing an H-1B for an employee who is already in a non-immigrant status (like, J1, F1, TN, O, P, etc.), it is important to know that the H-1B status becomes valid until October 1st, 2010. It is imperative that the employee's expiration date of their current non-immigrant status doesn't take place before October 1st, 2010. Otherwise, the employee will have to change their status to another non-immigrant status while waiting for the H-1B to become valid, or travel to their country of origin and have their visa issued at their US Consulate or Embassy.
Filing for H-1B visa for an employee living in another country:
If the employee currently lives in another country (Like India, China, Germany, etc.), the H-1B case will be filed in the US and if it gets approved, the USCIS will issue an appoval notice that has to be sent to the employee to their country of origin and get their visa stamped on their passport at their local US Consulate or Embassy. The effective date of travel must be on, or after October 1st, 2010.
Employer's compliance with H-1B regulations and wages:
An employer who petitions a nonimmigrant worker must comply with a number of conditions and regulations. For instance, the petitioning employer is responsible to pay the “prevailing wage" salaries of their H-1B employees until they are officially released from its payrolls.
For the entire time in which an employee is on the company payroll, and the company fails to release him or her, the company is required to continue to pay the prevailing wage as per the Labor Condition Application ("LCA") that they attest to in the H-1B filing.
There are other regulatory requirements for Petitioners who release their H-1B employees prior to the LCA’s expiration. Should your Human Resources management have any questions with respect to such compliance requirements, feel free to contact Attorney Gabriel Jack .
If you need more information about the H-1B visa, the process and FAQ, you can read more here.
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