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Immigration & Nationality Law

Jan25

How To Ensure Your H-1B Cap Filings Are Done Correctly And Smoothly

 
The H-1B Cap Season for work visas benefiting foreign national professionals in specialty occupations is about to hit with full force. Nationwide, companies, human resources and global mobility professionals along with immigration attorneys and foreign workers are bracing themselves for impact.

Those who have been through this process know how frantic and stressful it can be.  The H-1B visa is highly coveted because it is one of the few available that do not require a particular nationality, extraordinary ability or having worked for the company previously. Filing one is a time-sensitive process, though and one that requires U.S. companies to ensure that their petitions are airtight to go through.

How Many H-1B Visas Are Available?

For each fiscal year, beginning October 1, Congress allots 65,000 H-1B visa numbers, representing the regular H-1B cap, plus an additional 20,000 for foreign nationals with a U.S. Master’s degree related to the position offered. Employers can file H-1B visa petitions six months before the new fiscal year, which means the upcoming deadline for the next set of visas is only slightly more than two months away.

The competition is strong. Last year, the United States Citizenship and Immigration Services (USCIS) received more than 237,000 cap-subject H-1B petitions within the first five days April 2016. Because the number of visa petitions initially received exceeded the H-1B cap, a computer-generated lottery was conducted to determine which cases would be accepted for adjudication.

The H-1B cap only impacts new cap-subject petitions. If a foreign worker was previously counted against the H-1B cap, he or she would not need to be concerned about the April 1 deadline. Therefore, most “change of employer” petitions and all “extension of stay” cases are not subject to the H-1B cap.

When To Submit H-1B Visa Petitions:

This same process will occur this year. USCIS, per regulation, will accept filings for five business days and, if the cap is reached during that time, will again conduct a random lottery to determine which cases will be adjudicated. Having one’s case accepted by USCIS does not mean that it will also be approved.

I recommend this timeline to clients to ensure that H-1B visa petitions are well prepared and timely filed:

  • February 1, 2017 – Provide a list of foreign employees to be sponsored for H-1B cap cases to a qualified immigration attorney. For each beneficiary, provide the name, email address, job title and salary.
  • February 5, 2017 – Ensure your immigration attorney opens the matter in their firm’s case management system and send questionnaires to each employee, as well as a list of documents needed.
  • February 20, 2017 – Have employees complete all questionnaires completed and return documents to your immigration attorney.
  • March 10, 2017 – Receive all draft petitions and Labor Condition Applications by your immigration attorney for signature.
  • April 1, 2017 – Confirm all petitions are filed with USCIS.

It is likely that, just like last year, the H-1B cap will be reached and a lottery will be used. Given the “luck factor” of the H-1B selection process, we can at least ensure that each submitted petition is prepared thoroughly and received on time.  H-1B applications that are incomplete, faulty or sent to the wrong address will not be accepted at all.

 

About the author:
With more than a decade of immigration law experience, Higgs Fletcher & Mack’s Regina Knoll represents a diverse group of people and business entities in a wide array of immigration matters pertaining to visits to the United States. This includes business and pleasure activities, temporary and permanent employment opportunities, and study and exchange studies. She can be reached at
knollr@higgslaw.com.