Hurry, Rush for H-1B's
-Sudhir Shah, Advocate, Mumbai

In USA first attempt to put restrictions on the importation of Labour occurred in 1891. The purpose was to end the practice by some USA employers of importing unnecessarily foreign workers to break strikes and otherwise adversely affect the wages and working condition of USA workers. Though the H-1 categories of non-immigrant visa of USA were first included in the Immigration Nationality Act of USA in 1952. It was from from 1st October 1991 that the H-1B category classified as a non-immigrant, “an alien who is coming temporarily to the USA to perform services in a specialty occupation for which the alien is qualified through the appropriate degree or through a combination of education and experience equivalent to that degree”.

Today an Annual numerical cap of 65,000 per year restricts H-1B visas. In 1999 and 2000 this cap was raised to 1,15,000. In 2001 it was to reduce to 1,15,000. However high demand of computer professionals necessitated the quota numbers to be increased to 1,95,000. Institution of higher education and non-profit or Government Research organizations are not subjected to the quota limits and the alien specialty occupation workers whom they invite are not counted in the 65,000 yearly quotas. In addition 20,000 H-1B visas can be issued annually to those who have done their Masters or higher education in USA. Simultaneously out of the 65,000 yearly quotas, certain percentage is reserved for Chilean and Singaporean workers. Thus the quota numbers are illusive.

A USA employer desirous of employing an alien for a job, which requires a degree holder, may sponsor the alien processing such a degree. The alien should not be invited to USA to displace an existing employee or to break a prevailing strike and should be paid wages at the prevailing market rate. The US employer has to file a Labour Condition Application with the Labour Department furnishing all these particulars. He has to then file an H-1B petition with USCIS Service center in whose jurisdiction he is carrying on his work. Along with the petition a support letter providing all information concerning itself, the job and alien employee has to be filed. Copies of documents, supporting the contents of the letter should also be filed. It takes between 2-6 months for such petitions to be processed and approved. If a fee of US$1000 is paid in addition to the normal processing fees the USCIS processes such petitions within 15 days of its submission. Once the petition is processed and accepted, the USCIS issues its approval notice. Thereafter the alien employee has to apply to the US Embassy or Consulate in his home country, in whose jurisdiction he resides, and has to satisfy the Consular officer that he has the required qualifications to be eligible to receive H-1B visa. On an H-1B visa, a alien employee can stay in USA for an aggregate period of 6 years. He can invite his spouse and unmarried children below the age of 21 years to stay with him. They can study USA but are not allowed to work there. It may be possible for the alien employee to be sponsored by his employers for a green card and in that event it may be possible for the alien employee to extend his stay in USA beyond 6 years period.

The Fiscal year of USA begins with 1st October every year and ends on 30th September of the next year. H-1B petitions can be filed 6 months in advance i.e. on or after April 1st. As the demand for alien workers in USA is very great. it is expected that petitions in large numbers may be filed. All those who desire to travel to USA on H-1B visa, should therefore rush to file their petitions on Tuesday April 1st 2008 itself.