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.
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.
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:
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:
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.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.