On April 1, 2015, the United States Customs and Immigration Services (USCIS) will begin accepting petitions for H-1B visas that are subject to annual quotas for the 2016 fiscal year (which would allow employees to start working October 1, 2015). The H-1B visa is a specialty occupation visa designed specifically for foreign national professionals with job offers from U.S. employers. Although not all employers are subject to the annual H-1B visa cap (85,000 again this year), most businesses seeking this essential tool for hiring and retaining talented foreign national employees are wise to plan ahead for the early-April filing deadline. Such planning is advised for both subsets of the 85,000 cap on H-1B visas, which includes 65,000 visas available to all petitioners and another 20,000 “Advanced Degree” visas available only to petitioners who have obtained a master’s or higher degree from U.S. universities.
In recent years, due to extremely high demand for H-1B visas, the volume of petitions has led USCIS to allocate the limited quota available to only those petitions filed during the first week of April. With the improving economy, this same result is expected this year. For employers subject to the 85,000 cap that seek to sponsor a foreign national for employment, planning for this filing window must begin far in advance in order to obtain the necessary Department of Labor (DOL) certification and leave sufficient time to prepare the visa application itself.
Employers that are exempt from the H-1B quota include higher education institutions, their related and affiliated nonprofit entities, and certain nonprofit and governmental research organizations. In addition, workers who currently hold H-1B visas do not count toward the Congressionally mandated H-1B cap. Applications for these exempt employers and workers can therefore be submitted at any time. Keep in mind that, in addition to any DOL certifications, USCIS processing times for H-1B visas are currently at least two months, unless the petition is filed using USCIS’s Premium Processing service, which is an extra expense.
In addition, Franczek Radelet anticipates ongoing and significant changes to immigration rules and regulations in 2015 that could impact employers and foreign nationals. Changes to immigration rules driven by President Obama’s recent executive action are expected to result in longer training periods (OPT) for foreign national students in science, technology, engineering, and mathematics (STEM) fields. This would allow businesses to retain foreign national talent for longer periods without separate visa applications or sponsorships for work authorization. Additionally, changes to visa portability rules could result in more labor mobility for foreign national workers, a double-edged sword for employers. Clearer guidance on the definition of “specialized knowledge” will allow multinational corporations to more easily transfer personnel to the United States, and investors and entrepreneurs will enjoy enhanced opportunities to invest and start businesses in the United States.
Legislative changes also appear to be more likely. As of mid-January, the U.S. House of Representatives was considering a bill that would expand the size of the H-1B quota from 65,000 visas per year (with the additional 20,000 visas for U.S. Advanced Degree holders) to 195,000 visas per year.