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Fashion Law Blog An Interactive Discussion on the Business of Fashion

Fashion Law 101: H-1B Visas

Posted in The Business of Fashion

Guest Post by Alka Bahal

ClocksFashion Brands beware! The clock is ticking and you just might miss your chance to obtain or keep that talented foreign designer you desperately need.

Why?

Because you need an H-1B visa in order to employ foreign national.

Just in case you don’t know, the H-1B is a versatile nonimmigrant visa for U.S. employers to hire professional employees, which means it is used for workers with at least a U.S. Bachelor degree (or equivalent). In the fashion industry, the visa is often used for occupations such as designers, models, executives, logistics and manufacturing professionals, etc. The visa carries a “prevailing wage” requirement, which means that the employer must pay the worker a mandated minimum salary set by the Department of Labor.

AND the U.S. Citizenship and Immigration Services (USCIS) anticipates that the H-1B cap for the upcoming fiscal year will be reached by April 5.

The announcement states:

“Based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap. The lottery for the H-1B cap was last used in April 2008.”

What does this mean to you?

In plain English, there are only a very limited number of new H-1B visas available (65,000 total) and once this number is reached, there will be no more issued until October 1, 2014.

Am I out of luck if I haven’t filed yet? 

Probably, BUT here is what you can do moving forward:

An employer may file an H-1B petition as early as six months in advance of the anticipated start date, which means that an employer may file an H-1B petition for a cap subject worker as early as April 1, 2013 (for a start date of Oct. 1, 2013).  Based on current predictions, however, if you don’t have a petition filed by April 5, you’re probably out of luck for this year.  You can also file  H-1B cap subject petitions under USCIS’ expedited processing, premium processing, but USCIS has announced that premium processing for such petitions will not take effect until April 15, 2013, in anticipation of the high volume of H cap subject filings, so premium process will not help you secure a visa number ahead of any other filings

So in sum, if you have employees on other visas or prospective employees who need an H-1B in order to keep working, you better move fast and file the H-1B visa petition is now (or risk losing the employee).

And if you can’t get a petition file in time and the cap is reached, plan to re-start the process again next February (put this date on your calender NOW!) so you can be on time to file on April 1, 2014 for the October 1, 2014 issue date.

*Image courtesy of dan / FreeDigitalPhotos.net