Sunday, January 4, 2015

Top Ten 2015 H-1B Tips

Immigration Attorney Chuck Miller lists his Top Ten H-1B tips for employers and professional employees, in advance of the start of the April 1, 2015 H-1B filing period

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 October 1, 2015 employment is April 1, 2015.
Last year, U.S. Citizenship and Immigration Services (USCIS) announced on April 9, 2014, that it had received 172,500 H-1B visa petitions for the 65,000 H-1B available numbers.  This exceeded the 124,000 H-1B visa petitions the USCIS received in the previous year.  USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.  

Because of the large number of petitions received during the filing period, the agency used a computer-generated random selection process or “lottery” to select petitions to meet the 65,000 cap for the general category and the 20,000 advanced degree cap under the advanced degree exemption limit. It is likely that the low cap numbers will be not be sufficient for this year's volume demand and that the cap will close quickly as it did last year.

To maximize your chances for H-1B employment authorization, your company should consider the following ten tips:

1. 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 quickly reached last year.

2. Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

3. Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers. TNs are now eligible for a three year admission, providing flexibility for employers’ long-term employment strategy of the North American foreign professionals.

4. Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

5. 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.

6. DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs. The accepted employment must be with employers enrolled and considered by the CIS to be in good standing in the E-Verify program. The successful STEM OPT extension, with the approval of the school’s DSO and the proper and timely filing of the extension, may represent a bridge to an opportunity for the unsuccessful applicant’s next opportunity for successful H-1B petition.

7. A qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year.  If your employer an institution of higher education; related or affiliated to a higher education institution nonprofit entity, or a nonprofit research organization or a governmental research organization, you may expect favorable exempt treatment for your H-1B petitions.

8.  Duration of status and any post-completion OPT work authorization is automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1, 2014.

9. Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

10.  Watch the news for changes in immigration benefits for professionals and highly skilled employees.  On November 20, 2014, President Obama outlined his long-awaited executive action to provide wide-reaching relief to millions of undocumented persons. In addition, the President proposed changes to the legal immigration system that would benefit foreign graduates and highly skilled professionals, including:
  • Greater utilization of the EB-2 National Interest Waiver for the "brightest and best" high skilled potential immigrants
  • Modernization of the employment-based immigrant visa system
  • National interest waiver and parole for foreign inventors, researchers and founders of start-up enterprises
  • Expansion and extension of on-the-job training for STEM graduates of U.S universities.