H1-B Visa for the 2016 Fiscal Year

Earlier this year, (FY 2015) the USCIS announced that they were going to stop accepting applications for H1-B visas just a week after they started accepting the applications. Many people are still wondering when the next year’s season will begin.
This blog will explain many of the common questions people have about the H1-B Visa.

H1-B Visa FY 2016

What is the H1-B Visa?

  • The US H1B Visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in architecture, engineering, mathematics, science, and medicine.

When will the next fiscal year H1-B 2016 season begin?

  • Historically, the USCIS starts to accept the petitions from April 1st for the next fiscal year. Assuming they will do it next year as well, the USCIS would start accepting petitions for H1-B Visa FY 2016 starting from April 1st, 2015.

What are the requirements for the H1-B Visa FOR FY 2016?

  1. There must be an offer for employer-employee relationship between the beneficiary and the petitioning U.S. employer.
    • In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B
  2. Your job must qualify as a specialty occupation by meeting the following:
    • Bachelor’s degree (or higher degree/equivalent) is usually the minimum requirement for the particular position;
    • The degree requirement is common for this position in the industry, or the job is so unique that it can only be performed by someone with at least a bachelor’s degree;
    • The employer normally requires a degree or its equivalent for the position; or
    • The nature of the specific duties is so specialized and complex that the knowledge requirements perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
  3. Your job must be in a specialty occupation related to your field of study.
  4. You must be paid at least the actual or prevailing wage for your occupation, whichever is higher.
    1. To demonstrate that the employee will be paid the appropriate wage, the petitioning employer must submit a Labor Condition Application (LCA) for the proffered position, certified by the Secretary of Labor, which states, in part that:
      • The employer is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B non-immigrant wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.
    2. An H-1B visa number must be available at the time of filing the petition, unless the petition is exempt from numerical limits.

What if I want to apply for the H1-B Visa but I own my own company?

  • If you own your own company you may be able to demonstrate that an employer-employee relationship exists if your employment is controlled by the employer. Some of the evidence you may submit includes:
    • Term Sheet
    • Capitalization Table
    • Stock Purchase Agreement
    • Investor Rights Agreement
    • Voting Agreement
    • Organizational documents and operating agreements

Obama’s Executive Action for H1-B visas and foreign entrepreneurs
Although the executive action is not expected to increase the number of H1-B Visas for FY 2016, the new policy is said to expand the eligibility for the spouses of skilled employees (H-1B visas) to work legally in the United States in H-4 status. This should come as welcome news to many high-tech companies based in the Silicon Valley and San Francisco who rely on foreign professional workers.
It is also expected to open visa opportunities for certain foreign entrepreneurs to become eligible for visas to begin start up operations in the Silicon Valley and San Francisco as well.  Please stay tuned to our updates, as we will publish any updates as they are released by the USCIS.
Once you have determined that the H-1B visa classification is the best pathway for you and you are ready to apply, you can contact any of our immigration attorneys at our San Jose, San Francisco and Pasadena offices.

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