The H-1B Cap Season for non-immigrant visas benefiting foreign national professionals in specialty occupations is about to hit with full force. Nationwide, companies, human resources & global mobility professionals, immigration attorneys, and foreign workers are bracing themselves for impact. Those who have been through this process previously know how frantic, stressful, and random it can be.
The H-1B visa is so highly coveted, because it is one of the few visas available for U.S. employers who want to remain competitive in the global economy that do not require a particular nationality (E visas), extraordinary ability (O visas), or having worked for the company previously (L visas.) Higgs Fletcher & Mack would like to provide some guidance for the early stages of this time-sensitive process to help U.S. companies and foreign workers with the timely preparation of airtight H-1B visa petitions for the next fiscal year.
Congress established for each fiscal year that there be available an allotted number of H-1B visa numbers. Currently, that number is at 65,000 for the regular H-1B cap and at an additional 20,000 for foreign nationals with a U.S. Master’s degree (or higher) related to the position offered.
Each year, the fiscal year starts on October 1 and ends on September 30. Employers are eligible to file H-1B visa petitions six months in advance of the new fiscal year. This means that employers can start filing on April 1 for the start of the fiscal year on October 1. For example, for fiscal year 2015, which started on October 1, 2014, and will end on September 30, 2015, USCIS started accepting visa petitions on April 1, 2014, and received more than 165,000 cap-subject H-1B petitions within the first 5 days. Because the number of visa petitions initially received exceeded the H-1B cap number, a random, computer-generated lottery was conducted to determine which cases would be accepted for adjudication and receive cap numbers.
The next fiscal year is 2016, and it will run from October 1, 2015, to September 30, 2016. Employers can first submit H-1B visa petitions on April 1, 2015. USCIS, per regulation, will accept filings for five business days and, if the cap is reached and surpassed during that time, will again conduct a random lottery to determine which cases will receive a cap number and be adjudicated. Note that having one’s case accepted by USCIS does Not mean that the case will ultimately be approved. An H-1B visa petition should be prepared by a competent immigration attorney in order to meet all of the regulatory requirements.
Keep in mind that 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 will not need a new cap number and will 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. Cap-subject petitions include F-1 international students needing to change status to H-1B, TN employees wishing to change status to H-1B, and various others.
We recommend that employers open all cap-subject cases during the first week of February to ensure that all of the necessary paperwork will be prepared in time for an early April filing. It is very likely that, just like last year, the H-1B cap will be reached during those first five days and a lottery will be used. Given the “luck factor” of the random H-1B selection process, we can at least ensure that each submitted H-1B petition is prepared thoroughly and received on time and then hope that it be selected in the visa lottery. H-1B petitions that are incomplete, faulty, or sent to the wrong address will not be accepted at all.
If the employer decides to file the case by using USCIS’ optional premium processing service, the case will be adjudicated within 15 days after the lottery results are determined. By using premium processing, and provided that the case was selected in the lottery, the employer should know by the end of April which employees will have received cap numbers and can start employment on October 1, 2015. This helps companies for planning and human resources purposes. Without premium processing, it will take several months to receive the final decision from USCIS.
For cases handled through our firm, we recommend the following timeline to ensure that each H-1B visa petition is thoroughly prepared and timely filed on or close to April 1 – please note that we can work with cases after these dates, but prefer to start case preparation as soon as possible:
02/01/2015 – Company provides a list of foreign employees to be sponsored for H-1B cap cases to the immigration attorney. For each beneficiary, provide at least the name, email address, job title, and salary.
02/05/2015 – We will open the matter in our online case management system and send questionnaires to each employee, as well as a list of documents needed to prepare the case.
02/20/2015 – Employees should have all questionnaires completed and documents returned to our office.
03/01/2015 – We will draft the petitions, file the requisite Labor Condition Applications, and send pertinent documents to companies for signatures by 03/10/14.
04/01/2015 – We will file all petitions with USCIS.
If you are interested in learning more about H-1B visa petitions, or would like to open an H-1B visa matter with my firm, please do not hesitate to contact us directly. We represent companies and individuals in all industries throughout the United States. If the H-1B visa is not a suitable non-immigrant visa for your employee(s), there might be other visa options available. We would be happy to explore visa strategies with you.