New H-1B “cap” season April 1st – start early because big changes from last year

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New H-1B “cap” season April 1st – start early because big changes from last year

By Jim Nolan | February 26, 2010

New H-1B visas are more complicated this year! The difficult questions we are getting from our clients are:

How long can I wait to send in the case to Immigration
When do you have to decide to go ahead with the case before sending in the case
Is the case likely to be approved
- Is the salary adequate
- is the employee likely to be approved for the visa

I’d like to share the answers we are giving to our clients.

When is the latest date I can file the case?

There are two parts to this question. The clear answer is you should file the case while the person in the U.S. is in legal status. This usually means before his or her optional practical training (OPT) card expires plus the 60 day grace period. If the person isn’t in the U.S. you don’t have to worry about this.

Beyond that there is no sure answer to this question. The company and employee have to balance two risks and decide which is great. The risks are:

Delay paying filing fees The legal and filing fees are high. It is normal and reasonable for the company to be sure that the potential employee is appropriate and for the employee to decide if he or she really wants to work for the company. They would like as much time as possible to make this decision.
But, they also want the case approved If the case is sent in too late there is no chance for a visa for a year. There are only 65,000 normal H-1B visas each year. Except for 2009 this limit was reached within a few days after April 1^st , the earliest filing date. If people filed after that date the envelope was returned unopened. In 2009 the limit wasn’t reached until December 21, 2009, but Immigration didn’t announce this until December 23^rd, two days later.

Unfortunately, we don’t know if this year will be like 2009 or the years before. Therefore, it is safer to file on March 31, 2010.

When do I have to decide to go ahead?

Since the clients need to pay the legal and filing fees when they decide to go ahead, they would prefer to delay the decision. Up until July 2009 we could prepare an H-1B case within a few days after the client said go ahead.

This has changed and now it takes at least a week and usually 10 day to 2 weeks s from the time we start working on the case until it is ready to file. The reason for the change is the new procedure to file a form with the Department of Labor is much slower and unreliable than the older one. This is not just for our office, but true of all lawyers.

Is my case likely to be approved?

There are two main reasons the case won’t be approved.

The first is that the company isn’t offering to pay a wage the Department of Labor thinks is appropriate for the job being offered to the H-1B person in the area the company is doing business. This is called paying the “prevailing wage”.

Up until July 2009 the company could do its own research to see what is the normal wage for the job. They would only have to show the research if the Department of Labor asked for it (and it usually didn’t), but did not have to show it before filing the case.

Now, the Department of Labor will not accept the company’s research and requires the employer use the wage that the Department puts on its Web site. Many employers think that the Department’s wages are too high and we need to spend time working on this.

Assuming the employer is comfortable offering the Department’s prevailing wage, the next risk is that Immigration may not approve the visa request. Our experience is that it is getting much more strict than in the past.

The problems are:

Is the person’s college degree related to the job. An easy case for an approval would be a person being sponsored as an accountant with a college degree with a major in accounting. The same person being sponsored for the same job with a college degree with a major in English literature will have much more difficult time.
Does the job normally require at least a college degree in a special major. A person with a bachelor’s degree in physics can’t get an H-1B visa as a taxi driver because Immigration doesn’t think it is a normal requirement for a taxi driver to have at least a college degree.

Immigration has gotten stricter in this area. Immigration has asked questions about whether a college degree with a specific major is a normal requirement in jobs we didn’t ha e any problem with a few years. These jobs include: