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  • Article: The H-1B Season Is Upon Us Again by David H. Nachman, Esq.

    The H-1B Season Is Upon Us Again

    by David H. Nachman, Esq

    The 2013 H-1B Season is Upon Us . . . Will This Year's Economy Bring a Lottery? At this juncture, it does not seem likely. However, as the statistics from last year show, planning in advance of April 1st for the H-1B is the key to being able to continue your authorized work status in the U.S. It is likely that it need not be said but . . . it is always best to seek competent immigration legal counsel to be able to find a way to legally remain in authorized work status in the U.S.

    Yes, it is that time of year again! We always hear the Accountants moan and groan about the approaching April 15th deadline each year, but you have to listen a bit more closely and you will hear (and see) the U.S. Business Immigration Lawyers and Attorneys manifesting their continuing distaste for the April 1st filing date for cap-subject H-1B professional and specialty occupation workers.

    Well, here we go again . . .

    April 1st, 2013 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (DOL) for Labor Condition Applications (LCA) and H-1B visa petitions to the U.S. Citizenship and Immigration Services (CIS) for employment in the fiscal 2013-2014 year (FY 2013). Our advice to our H-1B employer clients continues to be that they need to think about filing H-1B petitions on (or very close to the) April 1st deadline for new and existing employees (usually international students in Optional Practical Training [OPT]) who will be eligible for first-time H-1B visas to begin their employment on or after October 1st, 2013.

    By way of background, each Fiscal Year (FY), Congress mandated an annual cap of 65,000 H-1B visas for "professional and specialty occupation workers" who possess the equivalence of a U.S. Bachelor's Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the U.S. Master's Degree or other advanced degrees from U.S. Colleges or Universities.

    Some cases are NOT subject to the cap. For example, Institutions of Higher Education and Government Research Organizations are H-1B Cap exempt organizations. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are also not included in the annual cap. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. The Singapore/Chile numbers reduce the total allotment of H-1B visas available each fiscal year to 58,200.

    Our offices continue to assist international students who are trying to obtain the H-1B nonimmigrant visa. We also assist employers with E-Verify applications, so that they can offer international students, who are working for them in Optional Practical Training (OPT), a 17-month STEM extension.

    In 2008, there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B during their OPT. At that time, a regulation was promulgated that provided "cap-gap" relief for F-1 students with approved H-1B petitions if the H-1B was filed while the student was still in a period of approved work authorization. In other words, F-1 student visa holders who received work authorization in OPT were permitted to extend the authorized work authorization and period of stay until October 1st as long as they have received an approved H-1B visa prior to the expiration of their OPT.

    Also, many Science, Technology, Engineering, and Mathematics (STEM) students continue to use the STEM extension as a way to get two (2) bites at the apple and to obtain the additional time they need to petition in a subsequent H-1B cycle. To get the STEM extensions, an employer needs to be enrolled in E-Verify. Now E-Verify allows the public to view which are and which are not E-Verify employers.

    For several fiscal years, the H-1B allotment actually lasted for almost eight to nine months. This past year, the H-1B allocation went faster. However, in some years past, the H-1B allotment was actually exhausted within three (3) days of the H-1B visas becoming available on April 1st. This required the CIS to conduct a "lottery". Those were scary times for individuals and companies seeking H-1Bs.

    It is likely that the demand for H-1B visas this fiscal year may be greater than it was for last year. We keep hearing that "economic recovery" continues in 2013. For this reason, we continue to advise our H-1B employers to consider filing on April 1st, 2013, or as close to April 1st, as possible.

    About The Author

    David Nachman, along with other firm attorneys at Nachman, Phulwani, Zimovcak Law Group, P.C., has worked on such cases as Berger vs. Berger (a landmark decision regarding the interpretation of what constitutes a minority shareholder pursuant to the New Jersey Business Corporation Act) and Wolley vs. Hoffman-LaRoche (a landmark decision in the employment law arena concerning the legal and contractual implications arising from an employment handbook). Mr. Nachman also successfully completed nonimmigrant and immigrant visa applications for national and international businesses of all sizes in many industries then joined another premier New Jersey law firm located Middletown. Mr. Nachman serves as an attorney in the Corporate/Business Law Department, where he is engaged in commercial and environmental defense litigation as well as securities regulation and contracts interpretation and drafting. Mr. Nachman continues to practice business immigration law for small and mid-sized businesses both in and outside of New Jersey.

    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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