What is H-1B cap season?

H-1B status grants work authorization to any alien who is qualified for and works in a job that requires the practical application of specialized knowledge. Specialized knowledge is knowledge usually associated with the completion of a U.S. bachelor’s degree (or the equivalent) in a specific field. H-1B employees work in a wide range of fields, from accounting to engineering and computer programming. Immigration law places a cap on the number of aliens who may be granted H-1B status, limiting the annual number to 65,000. An additional 20,000 H-1B slots are available to aliens who meet the normal H-1B qualifications and also possess a Master’s degree or higher from a U.S. institution of higher education.

The cap numbers become available at the beginning of each federal fiscal year, or October 1. But immigration law allows employers to begin filing H-1B petitions six months in advance of when an H-1B alien will begin work, meaning applications for cap season are accepted as early as April 1 of each year.

For several years running, demand for H-1Bs has been far higher than the supply and Citizenship and Immigration (“CIS”) typically receives far more than 85,000 applications during the first week of April alone. To handle this imbalance, CIS has instituted a random lottery to select which H-1B petitions will be processed. Those not chosen must wait until the next year to apply.

Who do employers typically need to sponsor?

Employers sometimes find that the best candidates (sometimes the only candidates) for certain skills that are much in demand in the U.S. are foreign workers, especially in engineering, computer science, or other STEM fields.

An employer should also determine if there are any existing employees that need sponsorship.  This could include individuals who are on Student (F-1), TN (Trade NAFTA), or L-1 (intra-company transfer) visas. 

Some employers have F-1 aliens already working for them based on a work authorization document issued to the student after the completion of their degree. Employers desiring to retain the employees long-term must eventually transfer the worker into some other status, such as H-1B. These employees typically represent the largest pool of individuals requiring H-1B sponsorship.

An employer may have a Canadian or Mexican employee who currently is authorized to work based on TN status. Employers may want to change TN workers into H-1Bs for two reasons. First, TN status is available only for a list of very specific occupations. Employers wishing to promote or change the employee’s position to one which is not included in the TN occupation list would not have the same restriction if the employee was in H-1B status. Second, employers wishing to sponsor key workers for green cards should move any such TN employees into H-1B status, as TNs cannot be sponsored for green cards.

L-1s are limited to five or seven years of stay in the U.S.  If an employer is pursuing a green card for the employee, holding H-1B status can be more advantageous because current immigration law allows H-1Bs to be eligible for extensions of their status beyond the normal time limit in certain circumstances while an individual is undergoing the green card process. The same benefit is not available to L-1s.

Planning ahead is crucial

Now is the time for employers to be thinking about whether any existing employees will need sponsorship, or whether the company intends to hire for positions that would be filed by an H-1B employee. H-1B petitions can often take several weeks to prepare and must be ready to file before April 1 to ensure the best chance of success. FBT is now starting work on new H-1B petitions for the 2015 cap season.