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Know The Law: H-1B Visas

Written by: Shiva Karimi

Q.  In my technology business, we regularly hire foreign nationals for highly skilled positions.  However, because of the H-1B cap, there are not enough visas available each year. We are unable to hire employees we need.  What can we do to increase our chances of getting an H-1B visas? Are there alternate work visas we can use? 

A.  The H-1B visa is one of the most common “work visas” in the United States.   It allows foreign nationals to work in a specialty occupation, which is one that typically requires a bachelor’s degree or above.  There is a cap of only 65,000 H-1B visas per year.  Each fiscal year, employers must file their applications during the first week of April for an October start date. In the past few years, the cap has been met during the initial filing period.  (172,500 for FY2015, 124,000 for FY2014 ). A lottery was then conducted to choose the applications that would be adjudicated.  It is anticipated that there will be just as many filings this year.  

While there are no “tips” or “tricks” to increase one’s chances of selection in the H-1B lottery, there are important factors to be aware of.  

Determine whether your organization or employee is cap exempt.

There are specific types of organizations that are Cap Exempt (such as institutions of higher education, nonprofit research organizations, etc.).  Private employers may petition under this provision if the employee will physically work at the cap-exempt organization and there is a nexus between the work performed and the normal purpose of the nonprofit.   

If an employee is already employed by a cap-exempt organization, any concurrent employment by a cap-subject organization will not be counted towards the cap.  

20,000 visas of the overall cap are set aside for individuals who have earned a U.S. master’s degree, thus giving those individuals a higher chance of being selected in the H-1B lottery.

Individuals who have been counted in the cap within the past six years and apply for an H-1B with a new employer are not subject to the cap. 

Individuals who are citizens of Singapore, Chile and Australia qualify for visas which are not part of the H-1B cap. 

Properly file your application
.

It is imperative to ensure that your application precisely follows UCSIC’s filing requirements or the entire application will be rejected. You must also make sure you satisfy the legal requirements for approval of an H-1B visa.  In this regard, it is important to consult with experienced immigration counsel. 

Consider alternate visas
.

There are many different types of visas available to employers such as the L intra-company transferee visa, the E investor’s visa and the J training visa.  Each visa is specific to a particular set of circumstances.  

Shiva Karimi can be reached at [email protected]

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
We invite your questions of business law.  Questions and ideas for future columns should be addressed to:  Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to [email protected]  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation. 

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