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H-1B Visa Availability Soon To Close

For all of Fiscal 2011, ending on October 1, 2011, the H-1B visas available are 65,000 but are now nearly used up. Last year the H-1B category remained open almost the entire year because of depressed employment opportunities due to the recession. This year things are better. However, the quota numbers for H-1B applicants has now reached 50,400 as of November 26, 2010. If a foreign specialty worker wishes to come to the U.S. to work to start October 1, 2011, he/she should find a job offer soon and apply now to avoid being shut out for fiscal 2011. For an approved visa, work will start on October 1, 2011 and extend to October 1, 2014. The H-1B numbers available should run out by about February, 2011.

For an H-1B applicant with a Master’s Degree, an additional 20,000 visa numbers are available. Already 18,400 numbers have been used, so by later February 2011 or early in March, 2011, these numbers should be used up. If a U.S. business is considering an offer to a foreign national, it would be wise to act as soon as possible.

LABOR CONDITION APPLICATION

With an application for H-1B, a company must submit a Labor Condition Application. This is a Labor Department declaration that the salary to be paid the prospective candidate meets the prevailing wage for the job sought. This wage must start to be paid within 30 days of the H-1B visa issuance and entry to the U.S. If the candidate is already in the U.S., then the salary must be paid within 60 days of the change of the candidate’s status to H-1B in the U.S.

PERIOD OF ADMISSION, MAXIMUM SIX YEARS

Time spent abroad is not counted against the six years. Spouses and children are included in the time limit. An employee who spends fewer than six months in the last year inside the U.S. may continue employment indefinitely as long as fewer than l/2 of the months of each year thereafter is spent here. If an H-1B has applied for permanent residence and has a Labor Certification and a Preference Petition based on employment pending for more than 365 days since the filing of the Labor Certification, the H-1B may be extended in increments of one year until the candidate has obtained permanent residence.

PETITIONER EMPLOYER FOR H-1B

The employer must be U.S. corporation, a U.S. partnership, or an individual U.S. citizen who will hire the foreign employee for service in the U.S. and who has authority to hire, pay, discharge, supervise and control the work of the employee. Also the employer may have to prove the capacity to pay the offered salary.

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