Executive Summary: We are releasing this Alert to remind employers of the fast approaching April 1, 2016 deadline for filing H-1B work visa petitions on behalf of foreign employees who need sponsorship for long-term work authorization in the U.S.
The U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B work visa petitions on April 1, 2016. The H-1B visa classification is designed for foreign workers who will fill a professional occupation that requires at least a bachelor's degree or equivalent. There is an annual limit of 65,000 H-1B spots available each year for foreign nationals with bachelor's degrees and an additional 20,000 for those holding U.S. master's degrees. In light of what appears to be a rebounding economy, we fully expect that the annual H-1B cap will be exhausted within the first couple of filing days, if not on the first filing day itself. As a point of reference, in 2015 the available H-1B spots lasted for only seven days.
Who Needs an H-1B Visa?
We urge employers to identify current or future employees who are present in the U.S. under any of the following categories:
- F-1 student visas;
- J-1 exchange visitor visas;
- TN/E-3 visas for Canadian/Mexican/Australian nationals;
- L-2/H-4 dependent visas; or
- E-1/E-2 treaty visas.
Any prospective professional employees who are residing overseas will also require visa sponsorship in order to work for a U.S. company. In many cases, the H-1B visa is the most common vehicle to achieve this.
What to Expect for the 2016 H-1B Filing Season
In light of the improved economic forecast, more employers have reported increases in hiring of foreign nationals for hard to fill professional positions. For fiscal year 2016 (which began October 1, 2015), the H-1B cap was met by April 7, 2015. During this filing period, which began April 1, 2015, the USCIS received nearly 233,000 applications competing for the limited 85,000 total H-1B spots. The USCIS was required by law to hold a lottery to randomly select the petitions it would accept for adjudication. The government then rejected those H-1B applications that were not selected under the lottery process or those that were received after April 7, 2015.
For 2016, we anticipate greater demand for H-1Bs than in 2015, and expect that the quota will be exhausted in less than seven days, perhaps even on April 1 itself. To ensure the best chance of securing one of the limited H-1B numbers, employers must work with their immigration counsel to ensure H-1B applications reach the USCIS on April 1, 2016.
When Should I Start the H-1B Process?
In light of the expected demand for H-1Bs, employers who would like to sponsor a worker for an H-1B petition should act quickly and begin working with an experienced business immigration attorney well in advance of the April 1, 2016 deadline. There are several prerequisite steps that must occur before an employer can file an H-1B petition with USCIS. These steps include registering the company with the Department of Labor (DOL), posting required notices, and obtaining DOL certification of a Labor Condition Application. These prerequisite steps can take up to three to four weeks, so time is of the essence, and starting early will allow sufficient time to accomplish all required steps.
Employers' Bottom Line
To maximize your chance of securing an H-1B visa, it is critical to file the H-1B petition on April 1, 2016. After the 2016 H-1B quota is exhausted, employers will have to wait until April 1, 2017 to file H-1B petitions again, and employees may risk losing legal status and work authorization.