On Monday, April 2, 2012, U.S. Citizenship and Immigration Services (USCIS) will begin accepting FY 2013 H-1B cap-subject petitions for employment starting on October 1, 2012. 

U.S. businesses use the H-1B visa to employ foreign workers in “professional” or “specialty occupation” positions. The H-1B visa allows for 6 years of employment in the U.S., which is extendable if the company sponsors the individual for permanent residence.

Why Apply on April 2nd?

The law allows for 65,000 new H-1B visas to be issued each year, and an additional 20,000 visas are available to foreign workers with an advanced degree from a U.S. academic institution.  Because there is a cap on the number of available visas each year, employers should take advantage of the April 2 filing opportunity to ensure they obtain an H-1B for any foreign workers they wish to employ in H-1B status as of October 1, 2012.

Certain employers are exempt from the H-1B cap, and can apply for an H-1B visa year-round. These include institutions of higher education such as universities, non-profit entities related to an institution of higher education, and non-profit or government-affiliated research organizations.  In addition, foreign workers who have already been counted against the H-1B cap are not subject to the H-1B cap.

What Type of Position and Foreign Worker Qualifies for an H-1B?

Any position that requires at least a bachelor's degree as a minimum qualification may qualify for an H-1B visa.  In other words, if in the general labor market a candidate would usually need a bachelor's degree to be hired for a given position, that position may be filled by an H-1B worker.  Similarly, the H-1B worker must possess a degree in a field related to the position being filled.  If the H-1B worker does not have a formal educational degree, then 12 years of progressive experience in the field may be used instead to obtain the equivalent of a bachelor’s degree.

How Do I Prepare?

Although the FY 2012 H-1B cap was not reached until November 22, 2011, we can not predict whether the cap will be reached quickly this year.  Therefore, employers should immediately evaluate their hiring needs for this year and identify any current employees or potential hires who will need H-1B sponsorship.  Possible candidates for an H-1B visa include potential new hires or current employees working on another type of work visa, such as student (F-1/OPT), exchange visitor (J-1), intra-company transferee (L-1), or NAFTA professional (TN).  Once employers have identified candidates for H-1B status, they should contact an immigration attorney to evaluate whether the offered position and the candidate’s credentials will support an H-1B petition and start preparing to file the H-1B case on April 2, 2012. 

Despite the recession, the lack of jobs and the training fees charged to U.S. employers hiring foreign workers on temporary H-1B work visas, the U.S. Department of Labor’s (“USDOL”) recently released Foreign Labor Certification Annual Report shows that U.S. employers are still struggling to find qualified U.S. workers in the fields of Science, Technology, Engineering and Math (“STEM”).  Employers report recruiting for STEM positions for over two years in hopes of ultimately finding a qualified U.S. worker – often resulting in the employer losing lucrative contracts or having to resort to using contract workers.  

Although an employer is not required to show the unavailability of a qualified U.S. worker when sponsoring a foreign national for a temporary H-1B work visa, an employer seeking to hire a foreign worker to work permanently in the U.S. must obtain a labor certification from USDOL before it can submit an immigrant visa petition to U.S. Citizenship and Immigration Services. Prior to submitting an application for labor certification, the employer must perform a labor market test to determine whether U.S. workers are able, willing, qualified and available for the position in the area where the job will be performed.  If there are no such U.S. workers, the employer may file an application for labor certification evidencing the recruitment efforts undertaken and any results thereof. The employer must also demonstrate that employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.  USDOL’s Annual Report confirms that employers should not have a difficult time showing the unavailability of qualified U.S. workers for STEM positions.

Here are highlights of USDOL’s FY 2010 Annual Report:

• The number of permanent labor certifications for occupations listed under the Professional, Scientific, and Technical Services industry increased by 131 percent and the Information Technology industry increased by 110 percent; 
• The majority of the positions for which more than 1,000 positions were certified in FY 2010 were for Computer Software Engineer occupations; 
• Out of the 25 employers with the most labor certifications, forty percent of these 25 employers are technology or computer-related companies;
• The largest number of permanent labor certifications were for foreign workers originating from India, South Korea, China, Canada and Mexico. The occupations of Computer Software Engineers, Computer Systems Analysts, Electronics Engineers and Electrical Engineers comprise the majority of job opportunities filled by foreign workers from India, China and Canada;
• Positions in Software Engineering, Computer Systems Analysis and Programming represented nearly 40 percent of the total H-1B certified positions;
• STEM positions accounted for 71.5% of all H-1B Labor Condition Application certifications; and 
• STEM positions accounted for 50% of all Permanent Labor Certifications.

Recognizing the importance of STEM positions to the competitiveness of the U.S., President Obama’s 2012 budget proposals seek $80 million to recruit 10,000 new science, technology, engineering, and math teachers in the next two years, with long-term plans of recruiting 100,000 teachers in the next ten years.  STEM careers are outpacing other professions in annual growth rates. Therefore, employers who previously had polices against visa sponsorship are quickly realizing that sponsoring foreign workers for H-1B work visas and ultimately for U.S. permanent residence is a necessary investment to remain competitive in the global marketplace.