IndiaPost.com - The H-1B visa program

On April 1, 2008, the US Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions in advance of October 1, 2008, which is the date when H-1B visas under Fiscal Year 2009 become available.

Since it is anticipated that there will be more petitions filed than the number of H-1B visas allocated under the regular H-1B cap of 65,000 and the 20,000 Master's cap, it is important for employers to start preparing H-1B visa cases as soon as possible so that they can be filed on April 1, 2008, or latest by April 2, 2008.

If the USCIS receives more than the allotted number, it will conduct a randomized selection of H-1B petitions that were received on April 1 and 2, 2008. Below is a general overview of the H-1B visa, which will assist readers in understanding the process prior to filing for the April 1st date.

A. What is the H-1b program?

The H-1B program is a prompt, lawful way for U.S. corporations to employ foreign-born professionals on a temporary basis. A U.S. employer using this program must guarantee that (1) the foreign-born professional will be paid at or above the rate paid for a similar position at the employer's own worksite or at the prevailing wage in the area of employment; (2) the foreign worker will not "adversely affect" the working conditions of his or her US colleagues; (3) the employer's employees will be given notice of the foreign worker's presence among them at the worksite; and (4) there is no strike or lockout at the worksite.

The employer also must demonstrate that the position is one requiring a professional in a specialty occupation and that the intended employee has the required qualifications. The foreign employee must demonstrate that he or she possesses a baccalaureate degree or foreign equivalent.

The employer must also demonstrate that the occupation normally requires a baccalaureate degree. Progressively responsible work experience may substitute for any deficiency in education. Usually, three years of work experience equates to one year of university education.

There is a detailed enforcement system in place to identify and sanction those employers who do not comply with these requirements; the punishments include repaying salaries to the foreign workers if found that they have been underpaid, fines as well as debarment from immigration programs for a year.

What is the H-1B cap?

Before 1990, there was no cap on the number of H-1B professionals allowed to enter the U.S. The 65,000 cap enacted by the Immigration Act of 1990 was set without any data about how many professionals were actually needed or what the economy might require in the future.

The growth of jobs which require specialized expertise in new or innovative technologies has fueled the need for H-1B professionals, and the cap was reached for the first time in Fiscal Year (FY) 1997, even before the end of that fiscal year.

Current projections strongly suggest that U.S. companies will have a steadily increasing need for H-1B professionals in coming years. In FY 1998 the cap was reached on May 11, 1998, a full five months before the end of FY 1998.

On October 21, 1998, the American Competitiveness and Workforce Improvement Act of 1998 ("ACWIA") was enacted to increase the cap on H-1B visas from current 65,000 to 115,000 for the FY 1999; 115,000 in FY 2000; and 107,500 in FY 2001.

The quota of 65,000 would return to 65,000 for FY 2002 and thereafter. Despite the increased numbers, the cap was reached in April 1999, six months before the end of FY 1999 (September 30, 1999). In Fiscal Year 2000, the cap was reached in March 2000.

The increase from 65,000 to 115,000 for FY 1999 was again not based on any data confirming the actual need of foreign professionals in a booming economy. In October 2001, the American Competitiveness in the Twenty-first Century Act (2000) (AC21) increased the cap to 195,000 for the next three years, with the cap dropping to 65,000 in October 2003.

Due to the economic downturn, the cap was not reached in FY 2001. The cap was also not reached at the end of FY 2002 or FY 2003. From October 1, 2003, FY 2004, the H-1B cap has again dropped to 65,000. As anticipated, the 65,000 cap was reached on February 25, 2004.

Congress did not take any action to alleviate the crisis. The new quota for FY 2005 with only 65,000 H-1B visas commenced October 1, 2005. However, employers could file H-1B petitions six months ahead of time on April 1, 2005.

On October 1, 2005, the first day of FY 2005, the United States Citizenship and Immigration Services (USCIS) announced that the 65,000 quota had been filled up. (To be continued)