A new year brings new challenges and opportunities, especially for U.S. employers, and it is now time to begin considering filing H-1B petitions for prospective new foreign national employees. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2015 for employment beginning no earlier than October 1, 2015, the beginning of the government’s 2016 fiscal year. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required (for example, engineers, teachers, accountants, and many professional information technology positions). The problem is that there are only 85,000 H-1B visas available each year and we again expect, as in years past, for these numbers to be quickly claimed.
There is a limit (or “cap”) of 85,000 H-1B visas available each year: 65,000 for bachelor degree-level candidates and 20,000 for advanced degree graduates of American universities. However, we anticipate that the available H-1B visa numbers will be exhausted within the first week employers are eligible to file new H-1B petitions. When this occurs, USCIS will conduct a computer-generated random selection process, or lottery, for submitted H-1B petitions to select which will be accepted for adjudication. If a petition is accepted and approved, the foreign national employee will be eligible to receive an H-1B visa number and begin, or continue, working for his or her petitioning employer.
The limit of 85,000 H-1B visas is specific for potential employees initially seeking to acquire H-1B visa or status, and does not impact current H-1B employees. Accordingly, cap-subject individuals include those acquiring the H-1B visa or status for the first time, such as foreign (F-1) students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa.
Each year the H-1B cap typically is reached quickly after the start of the April 1 filing period. Last year, USCIS announced on April 7 that it had reached the statutory H-1B cap within the first week of the filing period. USCIS received 172,500 H-1B petitions for the available 85,000 numbers, leaving nearly 90,000 prospective workers waiting and hoping for another chance to obtain employment, while employers scrambled to fill their needs for skilled workers.
Due to improving employment and economic forecasts, as well as a large number of H-1B candidates who failed to get a visa number last year or who are waiting to apply this year, we advise employers to be proactive and move quickly to ensure their H-1B petitions are prepared and ready to file no later than April 1, 2015.
Once the H-1B cap has been reached, no new petitions may be filed until the next fiscal year (April 1, 2016 for employment beginning October 1, 2016). This can make both hiring and planning an employment start date difficult. For example, although employers can file petitions up to six months in advance of the requested effective date, which makes the April 1 filing date so critical, the approved petition will not be valid until October 1. Thus, even though employers may file petitions on or after April 1 for the next fiscal year, the petition will not be effective until October 1.
The H-1B cap particularly impacts foreign (F-1) students who have post-graduate work authorization (Optional Practical Training, or “OPT”). Generally, OPT is valid for 12 months, and in certain cases can be extended up to 27 months. It also allows former students to remain in the U.S. and work while awaiting the filing or approval of an H-1B petition. Often these individuals’ OPT will expire before an anticipated October 1 start date, leaving them unauthorized to continue working. However, there is a “cap gap” remedy for foreign national employees who have an H-1B petition filed on their behalf. If, for example, an individual’s OPT expires on June 30, 2014, but this person has an H-1B petition filed before the expiry of their OPT and accepted by USCIS, then their work authorization is automatically extended to September 30. This allows the foreign national employee to continue working until the requested start date of the H-1B petition, or until the petition is denied or withdrawn.
Finally, in limited situations, other visa categories may be available in lieu of the H-1B. However, for those cap-subject individuals, such as those currently abroad or who do not have valid OPT or H-1B status, they must wait until October 1 before commencing employment. If you have any questions regarding the H-1B visa category or any of the issues discussed above, please contact one of our immigration attorneys, including Rob Cohen (614/227-2066), Catherine Kang (614/227-2081), or James Jensen (614/227-2070).