IT’S H-1B SEASON AGAIN

By Carl Shusterman

Carl Shusterman, Managing Partner, Law Offices of Carl Shusterman

It’s that time again.  Time for recruiters who are hiring foreign born professionals to get their H-1B visa ducks in a row.

For those new to this game, the H-1B provides temporary work status for foreign born workers who are filling jobs that have a minimum requirement of a Bachelor’s degree.   The H-1B is good for three years, and can be extended virtually automatically for an additional three years, so it offers six years of legal work status overall.   During this six year period, many foreign born professionals choose to “adjust their status” by applying for permanent U.S. residence ( a green card).

The H-1B is reserved for the “professional” class of workers – teachers, scientists, engineers, computer specialists, physicians, business executives and others whose jobs require at least a four year degree.   There are instances where this requirement is not necessarily clear cut.   For example, a computer specialist may have only a two year degree, but the U.S. Immigration Service could consider his or her professional experience equivalent to a four year degree.  The general rule here is that three years of professional experience equals one year toward a Bachelors degree.   Under the current formula, a foreign professional with a two year degree but six years of professional experience could qualify for an H-1B.   Registered nurses generally do not qualify for H-1Bs because a two-year degree typically is considered the minimum requirement for the job.   However, nurses with advanced degrees such as nurse practitioners (NPs) or certified registered nurse anesthetists (CRNAs) can qualify for H-1Bs.

Another requirement of the H-1B is that employers hiring these workers must pay the prevailing wage for the job.    Those who attempt to underpay foreign workers are liable to civil and criminal penalties.   Recruiters therefore should ensure that compensation packages offered to H-1B candidates are competitive by industry standards.

Keep in mind that there are annual numeric caps for H-1Bs – a general cap of 65,000 and a “Master’s Cap” of 20,000 for those workers who possess a Master’s degree or higher from a U.S. university.  

When it comes to filing H-1B petitions on behalf of foreign born candidates, the “starting bell” rings on April 1.   That is the earliest H-1B petitions can be received by the Immigration Service.  In past years, when the economy was more robust, the entire cap of 85,000 visas was reached within a couple of weeks of the start date (around mid-April.)    So many petitions were received, in fact, that the Immigration Service resorted to a lottery to determine which petitions they would consider.     In 2009, however, the race for H-1Bs got off to a relatively slow start and the 85,000 cap was not reached until December.   Based on how petitions picked up toward the end of last year, I foresee the entire cap being used up earlier this year – though just when is impossible to say.

Another important consideration is that certain H-1B petitions are “cap exempt.”   Recruiters may not have to worry about the cap if they are dealing with candidates or employees who are in cap exempt categories.   Cap exempt petitions include:

• Extensions of stay (three years to six years)
• Change of employers (except from a cap-exempt to a cap-subject job)
• Concurrent employment where the worker’s first job is for a cap-exempt employer
• Certain physicians who have received “J waivers”
• Persons working at a university or at university-related or university-affiliated employers
• Persons working at non-profit research institutions
• Person working at governmental research institutions

Though H-1B petitions may be approved as early as a few weeks after they are filed, candidates are not allowed to work in H-1B status until October 1.    So a candidate approved in April may have to wait over five months before he or she can begin working.

H-1B petitions are subject to a variety of nuances depending on the job category, the employer, the country of origin of the applicant, and other factors.    As the season begins, recruiters should make sure that their goals for particular candidates are aligned with the rules of the game.    Those who would like a more complete analysis of H-1B rules and regulations are welcome to email me at carl@shusterman.com.

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Carl Shusterman served as a trial attorney for the U.S. Immigration and Naturalization Service from 1976-82 and is principal of The Law Offices of Carl Shusterman.  He can be reached at carl@shusterman.com

Posted by Carl Shusterman on March 17, 2010. Filed under Legal/Compliance, Thought Leadership. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry