Tis the season – put a cap-subject H-1B on your holiday wish list!

With the New Year fast approaching, the time to begin preparing for an H-1B cap filing is now.  The first day to file for a “cap-subject” H-1B for the upcoming fiscal year (“FY”) is April 1, 2016. If selected and approved, the start date for these H-1Bs will be October 1, 2016.  While it seems a long ways off, the complexity of the process means it’s important to start now to ensure a timely filing.

What’s the H-1B cap? Congress limits the number of H-1Bs that may be approved each FY. These are for new petitions for those not currently in H-1B status.  The cap provides 65,000 H-1Bs for individuals with Bachelor’s degrees or equivalent, and an additional 20,000 for those with Master’s degrees from U.S. universities. Based on last year’s numbers, the number of H-1B applications this year will likely once again exceed the supply and result in a lottery.

Some key areas to consider when planning an H-1B filing include:

• Job title and job description:  To qualify for an H-1B, the position must meet the definition of specialty occupation– meaning the position requires at least a bachelor’s degree in a particular field– and the foreign national must possess a minimum of a U.S. bachelor’s degree or its equivalent.  Positions described as requiring less than a bachelor’s degree in a particular field will likely have problems. An employer may be required to demonstrate it regularly requires such a degree, the degree is normally required for entry into the position, the degree requirement is common to the industry,  or that the knowledge required to carry out the duties of the position is normally associated with at least a bachelor’s degree.

• Salary and prevailing wage: The salary offered for the position must meet the higher of the prevailing or actual wage for similar positions.   Prevailing wage is based on the Department of Labor’s classification system and will depend on the nature of the position and the employer’s minimum requirements.  The actual wage is the amount the employer pays similarly qualified workers in similar positions.

• Educational Documents: The foreign national beneficiary must have at least a U.S. bachelor’s degree or its equivalent in a field related to the specialty occupation.  All foreign degrees must be evaluated by an evaluations service specialized in the evaluation of foreign credentials.  There are also services available which provide evaluations of experience of combined education and experience, or simply experience, to determine whether a foreign national’s credentials meet this requirement.

• Employer documents: If the employer is a newer or smaller company, the employer may be required to submit evidence that sufficient work in the specialty occupation exists for the requested three year period.  This can be in the form of client contracts, work orders, or other similar documentation.

• The employer/employee relationship: If the foreign national will work anywhere other than the company’s location, the employer may need to document that it actually controls the work of the employee.  This may include the employment agreement, offer letter, employee handbook, position description, an itinerary of services, documentation of the company’s employee review process, copies of the employer’s organizational chart, or even contracts with company clients where the foreign national may be placed.

Regarding timing:  It takes time to properly prepare an H-1B petition.  Carrying out the necessary analysis and gathering the documentation required for each of the above points can be difficult and time-consuming. In addition, each petition must include a Labor Condition Application (Form 9035) certified by the United States Department of Labor which takes seven business days after filing or longer if the employer has to verify its FEIN beforehand.    Given all of this, it makes sense to begin the process as early as possible to ensure a timely filing.

If you have questions about H-1Bs and the H-1B cap, the attorneys at Minsky, McCormick and Hallagan are available to help.