April 1 is the first day of filing of H1B or professional working visa petitions by US employers. This date is very crucial because it is the day that the numerical cap of 65,000 visas is usually reached. Thousands of US employers seeking professional workers for the H1B visa rush to file their petitions on this day. They fear that they will lose opportunity of obtaining visas in view of the limit on the number of visas that are accepted within the next few days from the date of filing.
Josephine, a physical therapist, was in the United States last year to take the board examinations for her licensure. She passed the board examination and had an offer for a job at a health care institution in Florida. Last year, her employer filed for a petition for her working visa. This petition was filed on April 1, 2008.
After a few weeks, Josephine’s employer received the petition back and was informed that the H1B petition was rejected as it was not randomly selected by the immigration service. She was told that the quota has been reached and that her petition was not accepted for processing after the random selection of petitions. To avoid incurring unlawful status in the US, Josephine returned to Manila last year and was told that her employer is going to re-file the petition on her behalf on April 1, 2009. Josephine is again taking her chances of working in the US. She is hoping that her petition will be randomly selected this time for processing and that she will be afforded the opportunity to work in the US.
The H1B Quota
The H1B visa program permits US employers to hire foreign specialty workers on a temporary basis. Specialty occupation includes jobs in the information technology fields and jobs in other industries that include teachers, engineers, architects, scientists and researchers, and other management, scientific and technical consulting services.
The number of H1B visas that may be issued is governed by Immigration and Nationality Act Section 214(g)
(1) (A) which limits the number of visas to a 65,000 annually.
For the last five fiscal years, there are more visa petitions filed than the number of visas allocated for this nonimmigrant category. As a result of the numerous filing, the US Citizenship and Immigration Service devised a procedure for randomly selecting petitions received.
The Lottery Process
The USCIS will begin accepting petitions for H1B workers on April 1, 2009. Even if the petitions are accepted on this date, the start up date of employment will not begin until October 1, 2009. The reason the validity dates of the H1Bs begins on October 1 is that the fiscal year for 2010 starts on this date as well. April 1 is the date designated by USCIS to allow for advance filing and processing of the H1B visas.
Lottery will be conducted on petitions that are received within the next five days from April 1 if USCIS determines that they have received a sufficient number of cases. All petitions that were received between April 1, 2009 and April 7, 2009 will have the same receipt dates.
After lottery is conducted, the USCIS with issue receipts for those which are selected and those not selected the petitions will be returned.
Rejected Petitions
Those that were not selected were returned by the USCIS. Last year, more than 150,000 petitions were received and that only 65,000 were accepted for processing. For those that were accepted, there are still petitions that were also rejected because of multiple filings.
To increase the chances of being selected, a significant number of petitioners filed multiple petitions on behalf of same beneficiaries or professional workers. The USCIS came out with the guidance last year that multiple filings for the same beneficiary will be rejected or denied. Unlike those that were rejected because they were not randomly selected, petitions that were rejected last year because of multiple filings were returned without their filing fees.
Exempt from the Cap
Not all the petitions for professional working visas are subject to the cap. There are some exceptions available for qualified professionals to get H1B visas which are not covered by the 65,000 cap. The following professionals are not subject to the cap: those employed (1) by institutions of higher education; (2) by a related or affiliated nonprofit; (3) a non profit research organization; or (4) governmental research organization. It also does not apply to H1B extensions of status with the same company, a petition for second H1B, and transfer from one H1B cap subject employer to another H1B employer or to H1Bs for those who have a Conrad waiver.
No Certainty of the Future
In the practice of immigration law, we always ensure and increase the chances of approval of the petition filed with the USCIS by carefully drafting the petition and by supporting it with relevant and extensive documents as required by regulation. Unfortunately, in H1B petitions, even if one has a willing US employer and an approvable case, the chances of it being granted is still dependent on “luck” that the petition is going to win the lottery. This uncertainty creates unnecessary hardship not just to the prospective employee but also to the US employer who is in actual need of the services of the professional worker. While there is a prediction that fewer petitions are to be filed this H1B cap season, there is still urgency on the part of the Obama administration to fix the H1B system. The US businesses should have enough access to H1Bs to keep the US economy competitive in the world market and to keep the jobs in America.
(Tancinco may be reached at law@tancinco.com or at 887 7177)
