Spring is right around the corner, so we’d like to remind our clients, especially U.S. employers, to begin considering filing H-1B petitions for prospective new foreign national employees. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2014 for employment beginning no earlier than October 1, 2014 (this is the beginning of the government’s 2015 fiscal year, which runs from October 1, 2014 to September 30, 2015). The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required (for example, engineers, teachers, accountants, and many professional information technology positions). The problem is that there are limited numbers of H-1B visas available each year, and this year we expect these numbers to be quickly claimed.
There is a limit (or “cap”) of 85,000 H-1B visas available each year: 65,000 for bachelor degree-level candidates and 20,000 for advanced degree graduates of American universities. However, we anticipate that the available H-1B visa numbers will be exhausted within the first week employers are eligible to file new H-1B petitions. If this occurs, USCIS will conduct a computer-generated random selection process, or lottery, for submitted H-1B petitions to select which petitions will be accepted for adjudication. If approved, H-1B employees will be eligible to receive an H-1B visa number and begin working for their petitioning employers.
The limit of 85,000 H-1B visas is specific for potential employees initially seeking to acquire H-1B visa or status, and does not impact current H-1B employees. Accordingly, cap-subject individuals include those acquiring the H-1B visa or status for the first time, such as foreign (F-1) students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa.
Each year the H-1B cap typically is reached well before the end of the fiscal year. Last year, USCIS reached the statutory H-1B cap of 65,000 within the first week of the filing period, which ended on April 5, 2013. In total, USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.
Due to an improving economy, as well as an uncertain number of H-1B candidates who failed to get a visa number last year or who are waiting to apply this year, we advise employers to be proactive and move quickly to ensure their H-1B petitions are prepared and ready to file no later than April 1, 2014.
Once the H-1B cap has been reached, no new petitions may be filed until the next fiscal year (April 1, 2015 for employment beginning October 1, 2015). This can make both hiring and planning an employment start date difficult. For example, although employers can file petitions up to six months in advance of the requested effective date, which makes the April 1 filing date so critical, the approved petition will not be valid until October 1. Thus, even though employers may file petitions on or after April 1 for the next fiscal year, the petition will not be effective until October 1. This issue particularly impacts foreign (F-1) students who have post-graduate work authorization (Optional Practical Training). This allows them to remain in the U.S. and work while awaiting the H-1B effective date. Often these individuals’ optional practical training will expire before an anticipated October 1 start date, but there is a “cap gap” remedy for individuals who have an H-1B petition filed on their behalf and accepted by USCIS. This extends the period of work authorization until the requested start date on the petition.
Finally, in limited situations, other visa categories may be available in lieu of the H-1B. However, for other cap-subject individuals, such as those currently abroad or who do not have H-1B status, they must wait until October 1 before commencing employment. If you have any questions regarding the H-1B visa category or any of the issues discussed above, please contact one of our immigration attorneys, including Rob Cohen (614/227-2066), Catherine Kang (614/227-2081), or James Jensen (614/227-2070).