By: Kevin M. Mosher, Esq.
The annual rush for the limited number of H-1B Visas begins anew on April 1, 2010, which means that necessary paperwork and information should be prepared now to meet this deadline. This year again employers are advised to file their applications for these visas on or shortly after April 1st in order to have their best chance at receiving an H-1B Visa. For employers who are considering applying for an H-1B Visa for an employee, the following information should be helpful.
Who is the Visa for? Generally, if you have foreign-national employees who are recent graduates from a U.S. college or university, chances are that they are working for you under their student visa's post-graduation training program. Normally those students are only allowed to work 12 months post-graduation (sometimes longer depending on the circumstances), so if you want to retain them, it may become necessary that they have a visa that would allow them to work when their student visa expires.
What is the H-1B Visa? Basically, the H-1B Visa is an employer-sponsored visa designed to allow U.S. companies to employ non-immigrants in "specialty occupations." While there are other visa categories, employers seeking to employ a non-immigrant (a.k.a. foreign national) often find the H-1B Visa category most appropriate because of its breadth, scope and access to companies that do not have foreign subsidiaries.
What is a Specialty Occupation? The Department of Homeland Security (DHS) defines a "specialty occupation" as requiring:(1) theoretical and practical application of a body of highly specialized knowledge; and
(2) a bachelor's or higher degree.
While many jobs could meet these criteria, DHS typically favors the following job types: (1) Engineers; (2) Accountants; (3) Lawyers; (4) Scientists; (5) Financial Analysts; (6) Psychologists; (7) Systems Analysts; (8) Architects; (9) Professors/Teachers; (10) Management Consultants; and (11) Market Research Analysts.
How many H-1B Visas are there? Generally, there are a total of 65,000 new H-1B Visas available each year beginning on October 1. Thus, even though applications are accepted as early as April 1, 2010, the visa would not be effective until October 1, 2010, at the earliest. In addition to the 65,000 new H-1B Visas, there are an additional 20,000 visas for employees with Masters or higher degrees.
What are the fees? The government does not make it cheap for employers to sponsor employees on the H-1B Visa. There are three (3) fees for most private sector employers: (1) a $320 application fee; (2) a $500 fraud prevention fee; and (3) a $1500 ($750 for employers with 25 or fewer employees) training fee.
When should I apply? To be safe, employers should apply on or shortly after April 1, 2010. In previous years the government has had to use a lottery system to choose which applications were reviewed (and which were not) because so many companies sought visas. That changed in 2009, probably as a result of the poor economy and demand for highly-skilled workers. 2010 may be like 2009 in that there is not a rush for H-1B Visas. However, there is no certainty that demand will be low, so employers who have a candidate that they would like to sponsor should try and get their applications in as soon after April 1 as possible.
How do I apply? Several government documents and supporting paperwork need to be completed fully and accurately in order to ensure proper application. Since 9/11 and the overhaul of immigration agencies, the government has made it increasingly impractical for novices to successfully navigate through immigration procedures, including H-1B Visa application. Our experienced Immigration Response Team, however, is ready to assist you through the entire application process, and will gladly answer any questions that you might have.
If you have any questions regarding the filing of H-1B Visas, please contact Kevin Mosher at (952) 746-1700 or via e-mail at kemosher@wesselssherman.com.
