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Potential Changes to the H1-B Visa

April 1, 2013 marks the day USCIS will start taking H1-B Visa applications for the next fiscal year. As this date approaches amidst the Comprehensive Immigration Reform (“CIR”) debate, the question of how much CIR will change the H1-B visa process comes up.

The Immigration Innovation Act of 2013, a bipartisan CIR bill introduced by Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), and Coons (D-DE) at the end of January this year, touched upon on some of these changes. Not only will it nearly double the current H1-B visa cap of 65,000 to 115,000, it will also allow spouses of H1-B beneficiaries to work. An unlimited number of H-1B visas will be available to those with a U.S. Master’s degrees, up from the current limit of 20,000.. It would also give H1-B visa beneficiaries much needed flexibility by removing procedural hurdles and costs when changing employers and restoring revalidation for E, H, L, O, and P nonimmigrant visa categories. Fees from the H1-B and other immigration programs would fund an initiative to attract more STEM talent to come and stay in the United States.

Please note that until the Immigration Innovation Act is passed into law, the H-1B visa numbers are limited to 65,000 with an additional 20,000 for those with US Master’s degrees. H-4 visa holders cannot work. This is the current status-quo as we approach the H-1B Quota for fiscal year 2014.

Major Silicon Valley companies like Microsoft, HP, Intel, Cisco, and Oracle support this Act.. We too support this Act as well, as it will not only address the shortage of skilled labor in the IT field, but will also help America gain its technical edge over other countries. Although some critics of the Immigration Innovation Act and the H1-B visa in general condemn the visa as a way of outsourcing labor and displacing American talent, those criticisms are unfounded. The reason why these criticisms are unfounded is because H1-B visa holders would rather stay and further contribute to the American economy, but have no choice but to go back when their visa expires. By offering a path to citizenship, or at least providing flexibility to other nonimmigrant visa categories, it encourages H1-B beneficiaries to remain in the US where they pay taxes, start companies that hire more American labor, and otherwise contribute to the American economy.

Stay tuned for more articles on CIR, H1-B, and other immigration issues. Contact us if you have any questions about this article or about your own immigration situation!

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USCIS to accept H-1B petitions w.e.f April 1st 2013

United States Citizenship and Immigration Services (“USCIS”) will start accepting new cap-subject H-1B petitions with effect from Monday, April 1, 2013. Employers looking to hire a foreign national in the US in a “specialty occupation” may sponsor their H-1B visa. Specialty occupations are those that require, at a minimum, a Bachelor’s Degree.

These new cap-subject H-1B petitions will have a start of October 1, 2013.

Only a first-time H-1B employee will be counted against the H-1B quota. An H-1B change-of-employer or an H-1B extension filing is not counted towards the year’s quota numbers.

There are 65,000 H-1B’s available each year under the regular quota. An additional 20,000 H-1B’s are available to those foreign nationals who have a Master’s degree from a US university. Once the 20,000 visas reserved for Master’s degree holders is exhausted, the visas remaining from the regular quota will be utilized by both the Bachelor’s and Master’s degree holders.

It is anticipated that the H-1B quota is likely to get over soon this year-maybe within a few weeks. Employers looking to sponsor H-1B visas must be prepared to submit the paperwork as early as March 29th to ensure that USCIS receives the petitions on April 1st.

Students who are working pursuant to the Employment Authorization Document (“EAD”) issued under the Optional Training Program should ensure that the employers file their H-1B petitions before their EAD expires. This will ensure that they can continue to work for the H-1B employer until October 1st, 2013, even with an expired EAD.

H-1B 2013 Cap

For more information on the H-1B filing process, please contact the Law Office of Sweta Khandelwal at or 408 505 2065 I 408 200 0972.

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