January 09, 2015
Minsky, McCormick & Hallagan
It’s that time of year again. The time when job seekers, foreign students, employers, and their immigration attorneys all begin to consider how to proceed with filing for new H-1Bs. As April 1st is the date that U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B petitions for October 1st start dates, now is the time to prepare to file. Due to the high demand and limited availability, it’s important to start preparing now to ensure that H-1Bs are filed within the first five days of April. Otherwise, you won’t be able to file again until April 2016.
Background: The H-1B
The H-1B is one of the most common employment-based visas for foreign national workers. To qualify for an H-1B, a company must be hiring a foreign national for a specialty occupation — meaning the position requires at least a bachelor’s degree — and the foreign national must possess a minimum of a U.S. bachelor’s degree or its equivalent. If an individual has never previously received an H-1B, then the first day to file for the upcoming fiscal year, which begins on October 1, 2015, is April 1, 2015.
The Cap and the H-1B lottery
Congress has placed a limit on the number of H-1Bs that may be approved each fiscal year — the “H-1B cap”. The cap provides 65,000 H-1Bs for individuals with Bachelor’s degrees and an additional 20,000 for those with Master’s degrees from U.S. universities.
Last year, within the first week of accepting applications, USCIS received approximately 172,500 H-1B applications and held a lottery on April 7, 2014 to determine which applications would count toward the annual cap. Based on last year’s numbers, we predict that the number of H-1B applications this year will once again exceed the supply and result in a lottery — the “H-1B lottery”.
When conducting the lottery, USCIS randomly selects those petitions eligible for the 20,000 H-1B U.S. master’s degree cap, then places those not chosen into the regular lottery and randomly selects 65,000 from that group. USCIS will reject and return the forms and filing fees for those petitions that are not selected. If USCIS selects and approves a petition, that foreign national may begin working for the sponsoring employer in H-1B status on October 1, 2015 or later. To increase the chances of having a petition counted towards the cap, the petition should be filed on April 1, 2015 — the first day on which USCIS will accept H-1B petitions.
Certain foreign nationals are exempt from the annual numerical limit on new H-1Bs. Employers who wish to file a new H-1B for “cap-exempt” foreign nationals may do so at any time, regardless of whether the annual cap has been met. These include:
- Certain J-1 physicians;
- Employees of certain universities or affiliated nonprofit entities;
- Employees of nonprofit research organizations;
- Employees of governmental research organizations;
- Employees working in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam; and
- Individuals who have already been counted towards the cap within the last 6 years (persons who already have an H-1B or have had one in the past six years).
H-1B petitions filed for all other new employees will be “cap-subject” and will count against the numerical cap. Employers should begin now to prepare filings for the following groups of foreign nationals for H-1B sponsorship to ensure they are able to file on April 1st:
- F-1 students with OPT or CPT work authorization;
- Prospective employees who are abroad;
- Prospective employees currently working on an H-1B for a cap-exempt employer (e.g. a university);
- Prospective employees currently working for other employers in statuses other than H-1B (L-1, for example); and
- Current/prospective employees in another status who may have immigrant intent issues (ex. TN, E-3, etc.).
If you need assistance with or have any questions about the H-1B process, please do not hesitate to contact the attorneys at Minsky, McCormick and Hallagan, P.C.