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Thursday, February 4, 2010

Successful H-1B Petition Strategy Requires Planning

Planning pointers for employers and employees in advance of April 1, 2010, the first H-1B filing day.

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs each year. The first date that H-1B petitions will be accepted by the USCIS for employer filing for 2010 employment is April 1st.
The competition for the 58,200 H-1B numbers is keen. In April 2007 and 2008, there were USCIS random selections first for the 20,000 petitions qualifying under the “master’s or higher degree” advanced degree exemption, then for the 58,200 threshold bachelor's degree numbers.
While the current economy may reduce the number of petitions from the 2008 record levels, it is unlikely that the low cap numbers will be sufficient for the current annual demand.

To maximize the chances for successful H-1B visa employment authorization consider the following:
1. File the H-1B Petition properly. An improperly filed petition will be rejected and a delayed refilling may also be rejected if it misses the cutoff date. In 2008 the CIS refused new filings after a 5 day filing window. Later filed petitions missed the opportunity to be included in the computerized random selection or “lottery”.
2. Higher Education pays off. U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers. There is also competition for those additional numbers as that cap was also reached within the initial 5 day filing window period in 2008.
3. Extra numbers for Free Trade Visa applicants. H-1B1 Professionals from Chile (1,400) and Singapore (5,400) are given extra numbers and as they are used they are subtracted from the annual worldwide total. These Free Trade numbers are unlikely to be used up in 2010. The H-1B1 visa category allows specialty professional employment for qualified persons who possess the threshold bachelors’ degrees.
4. Canadian and Mexican TN professionals are treated favorably. Certain professionals from those NAFTA treaty countries are permitted TN status without the need to compete for H-1B numbers. TNs are eligible for a three year admission, providing new flexibility for an employer’s long-term employment strategy. Unlike the H-1B program, the TN status allows for an unlimited number of extensions for qualified professionals.
5. E-3 Australian professionals have advantages. Australians are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap. The advantage to the E-3 visa status is that there is no petition required for a nonimmigrant visa application, just an LCA and job offer; spouses are eligible to apply for employment authorization and an indefinite number of extensions are available.
6. Extraordinary persons are treated extraordinarily well. The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.
If you are interested obtaining information concerning any of these matters please send an E-Mail to Chuck Miller, cmiller@millerlawoffices.com or telephone (818) 508-9005.