Characteristics of specialty occupation workers (H-1B) – Part II

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By Michael Phulwani

USCIS issued a report on Characteristics of Specialty Occupation Workers (H-1B) from October 2007 to September 2008. The report contains information on the countries of origin, occupations, educational levels, and compensation of aliens issued H-1B visas during FY 2008. This is the concluding part of our article on this report.

Background: To qualify as a specialty occupation, the position must meet one of the following requirements:

* a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;

* the degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;

* the employer normally requires a degree or its equivalent for the position; or

* the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree.

In order to perform services in a specialty occupation, an alien must meet one of the following criteria:

* hold a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;

* possess a foreign degree determined to be equivalent to the United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university;

* have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or

* have, as determined by USCIS, the equivalent of the degree required by the specialty occupation acquired through a combination of education, specialized training, and/or progressively responsible experience. Specialty occupation may include, but are not limited to, computer systems analyst and programmers, physicians, professors, engineers, and accountants.

An alien may be admitted to the United States in H-1B status for a maximum period of six years; however, the H-1B petition may only approved for a maximum period of three years. Thus, the H-1B petition may be used to sponsor an alien for an initial period of H-1B employment or to extend or change the authorized stay of an alien previously admitted to the United States in H-1B status or another nonimmigrant status. Additionally, an employer may file the petition to sponsor an alien who currently has status as an H-1B nonimmigrant working for another employer or to seek an amendment of previously approved petition. In the case of a petition to amend a previously approved petition, no corresponding request needs to be made to extend the authorized stay of the beneficiary. For example, an employer may file an amended petition to notify USCIS of a different location where the beneficiary will be employed or a material change in the beneficiary’s job duties. Therefore, the total number of approved petitions in any fiscal year exceeds the actual number of aliens who are provided nonimmigrant status as H-1B. At the end of the six-year period, the alien must either change to different status (if eligible) or depart the United States. USCIS regulations provide that an alien who has been outside the United States for at least one year may be eligible for a new six-year period of admission in H-1B status.

When the H-1B category was enacted in 1990, Congress established that a maximum of 65,000 H-1B visas may be issued to aliens during each fiscal year. This limitation, commonly referred to as the “H-1B cap,” does not apply to H-1B petitions filed on behalf of aliens who have been counted against the cap in the previous six years and who have not been outside of the United States for one year or longer. Thus, generally, petitions to extend an H-1B nonimmigrant’s period of stay, change the conditions of the H-1B nonimmigrant’s current employment, or request new H-1B employment filed on behalf of H-1B workers already in the United States will not count against the H-1B fiscal year cap. In addition, approved petitions for initial employment are exempt from the cap if the sponsors or institutions of higher education or nonprofit organizations affiliated with institutions of higher education or if the sponsors are nonprofit research organizations or governmental research organizations.

The INA, as amended by the Immigration Act of 1990, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act (AC21), made significant changes to policy and procedure governing the H-1B category, including providing temporary increases in the fiscal year limitations on available H-1B visas and providing for certain exemptions to these limitations. Under ACWIA, the annual ceiling of H-1B petitions valid for new employment was increased from 65,000 to 115,000 in Fiscal Years 1999 and 2000 and to 107,500 in Fiscal Year 2001. AC21 raised the limit on petitions in Fiscal Year 2001 from 107,500 to 195,000 and in Fiscal Year 2002 from 65,000 to 195,000. The limit in Fiscal Year 2003 was 195,000. Starting in Fiscal Year 2004, the H-1B cap reverted back to 65,000 per fiscal year and presently remains at that level. These statutory provisions also provided for certain exemptions from the fiscal year H-1B cap; petitions for new H-1B employment are exempt if the aliens will be employed at institutions of higher education or related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. In addition, the H-1B Visa Reform Act of 2004 mandates that the first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned master’s or higher degrees will be exempt from any fiscal year cap on available H-1B visas.

Statistics: During Fiscal Year 2008, USCIS approved 276,252 H-1B petitions submitted by employers on behalf of alien workers. Of the H-1B petitions approved in Fiscal Year 2008, 54 percent reported that the beneficiary was born in India. The number of beneficiaries from India approved for initial employment decreased 7 percent in 2008, while the number of beneficiaries approved for continuing employment increased 8 percent over FY 2007.
H-1B petition processing: Petitions for obtaining H-1B nonimmigrant status for alien workers are submitted by their prospective employers on USCSI Form I-129, Petition for a Nonimmigrant Worker, and the addendum, H-1B Data collection and Filing Fee Exemption Supplement. The petitions are mailed to one of two USCIS Service Centers (St. Albans, Vermont and Laguna Niguel, California) for processing depending on the location of the beneficiary’s Web site.

Upon receipt, each petition is stamped with its date of arrival at the service center. A clerk creates a paper file that contains the original petition as well as all supporting documentation. This file becomes the official file of record for all activities connected with the petition.

Biographical data, such as name, date of birth, and country of birth, is entered from the petition by data entry clerks into the case tracking system Computer-Linked Application Information Management System (CLAIMS3). The computer system generates a unique number for the file, known as a receipt number. After being sorted into potential cap and non-cap cases, the file is distributed to an adjudicator.

The adjudicator then determines whether there is adequate information in the file to approve or deny the petition. If sufficient evidence is available, the adjudicator makes a decision and enters the corresponding information into the tracking system. Otherwise, the adjudicator seeks additional information from the sponsoring employer. The employer must respond within a set period of time or the petition will be denied.
After petition
s are adjudicated, the associated paper files are forwarded either to the USCIS records center in Harrisonburg, Virginia for storage or to the Kentucky Consular Center in Williams-burg, Kentucky for consular processing.

Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

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