Preparing for your working visa this April 2009 - Atty. Mike Templo

Posted at 01/03/2009 3:50 AM

Unless you’re the luckiest person in the world, you can’t just decide to fly to the United States whenever you wish and hope to find a willing US employer to sponsor you on a working visa and hope to get approved without obstacles in the way.  There is nothing like preparation.  And to be adequately prepared, you must know these basic rules.

The H-1B visa program is available for US Employers to empower them to temporarily employ foreign alien workers.  This non-immigrant visa allows an alien to work temporarily in the United States for an initial period of three years and then renewable for another three years for a maximum of six years.  In certain circumstances, one year increments are approved after the six year maximum for aliens waiting for their greencards or application for lawful permanent residence. 

Under current law, an I-129 petition for a non-immigrant worker can be filed six months before the start of the fiscal year which is October 1 of every year.  This means that the petitioner (US Employer) can file an I-129 petition for non-immigrant worker as early as April 1 of each year.  This seems like a filing start date but in reality, the April 1 date is more like a deadline than the earliest date of filing.  This is so because since there is a cap on the number of working visas issued every year, every potential employer makes it a point to file on the first day to ensure that their application is included in the cap. 

Every year, 65, 000 visas are allotted for H1B petitions.  This is called the cap, or the limit, on the number of visas that are issued for aliens who wish to work temporarily in the United States. In 2007, the cap was reached on April 2. Barely a day after the first day USCIS started receiving the working visa petitions.  It is also worth noting that there is an extra numerical limitation of 20,000 for those aliens who obtained their Master’s degree in the United States.  When the cap is reached, or in other words, when the numerical limitations of the H1B program have been reached, USCIS randomly selects petitions received on the “final receipt date”.

As a consequence, some employers will try to submit multiple petitions for the same alien to ensure that at least one petition will be considered for the alien.  In response to this, a final interim rule now empowers the USCIS to deny or revoke multiple petitions filed by a US employer for the same H1B worker and will also not refund any and all filing fees.

For those who already have H1B visas and are filing for an extension, do not worry about not being able to be included in the cap.  H1B Visa renewals and extensions of stay do not count towards the annual limits.  This means that you have been already counted towards the cap in the year your initial petition was filed, so you will not be counted when you ask for a renewal or extension.  It is only when the alien transfers employers that the petition will be counted towards the cap.

Another consideration is that if the alien in physically in the United States when the petition is filed, then he or she must be in lawful non-immigrant status on the date the working visa is approved, which is October 1.  If you are in the United States under another non-immigrant visa category, you must ensure that you are in lawfully admitted status up until the time the you change your status to H1B status.  You must be aware that even if the working visa petition is approved but you are out of status at the time it is, then you will still not be able to work in the United States.  Remember, a two-step process is involved if you are processing your working visa while in the United States.  First, the petition must be approved.  When it does, then you have to apply for a change of status from your current non-immigrant visa category to the working visa category.  If you are out of status when you apply to change your status, you application will be denied because there is no status to change!

Atty. Michael Templo is an attorney admitted to practice law in New York State and Federal Courts and is a partner at Templo & Templo with offices in New York, USA and Makati City, Philippines.  Atty. Templo specializes in US Immigration matters.  The discussion above is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional.  For your comments and questions, Atty. Templo can be reached at [email protected] or log on to www.templolaw.com.