The H–1B deadline to file cap-subject H–1B petitions is again drawing close. Employers subject to the H–1B quota must file petitions immediately prior to April 1, 2016, to have any realistic chance of receiving approvals for this coming fiscal year.

Background on the H–1B Quota Limitation

The H–1B Temporary Worker classification allows employers to hire skilled professionals in professional-level positions. Unfortunately, the number of H-1B visas is inadequate to satisfy employers’ demands. There are only 65,000 H–1B visa numbers available under the annual quota with an additional 20,000 H–1B visas allotted for graduates of U.S. master’s degree programs. The earliest date when H–1B cap-subject petitions can be accepted at U.S. Citizenship and Immigration Services (USCIS) is April 1, 2016 – that is, six months prior to the commencement date of the next fiscal year (October 1). Last year, USCIS received approximately 233,000 H–1B petitions in the first week. There will be a lottery for those applications received within seven days of April 1, 2016, assuming (as is likely) that USCIS will again receive more than 65,000 petitions. The lottery is a random selection process of the H–1B petitions received to determine which will be assigned an H–1B cap number and adjudicated.

Employers with foreign national employees who need H–1B sponsorship should start the process now in order to ensure their sponsorship petitions are received at USCIS on April 1, 2016.

Being chosen in the lottery is only the first step. To qualify for an H–1B, the foreign national worker must possess at least a bachelor’s degree or equivalent in a relevant field for a position that requires a degree in that field (also known as a specialty occupation). As a general statement, the H–1B cap applies to new H–1B petitions filed for foreign workers who have not had a cap-subject H–1B petition filed and approved with the past six years. However, there may be situations that would exempt an H–1B petition from the H–1B quota. Please contact Fredrikson and Byron’s immigration attorneys to determine if your prospective H–1B sponsorship falls within the H–1B quota limitation or if you might qualify for an exemption from this cap.

Identifying Candidates Who Need H–1B Sponsorship

To avoid missing out on filing an H–1B petition under FY2017 (beginning October 1, 2016), employers should identify candidates who need sponsorship and are in professional positions. Some of the candidates may already be employed and working under temporary work authorization. Below are examples of cases where an employee or job candidate may need H–1B sponsorship:

  • Students working under Optional Practical Training (OPT) or Curriculum Practical Training (CPT) who need H–1B sponsorship to be employed in the US once their OPT or CPT expires;
  • Candidates currently in H–1B status with an H–1B cap exempt employer (institutions of higher education or a related or affiliated non-profit entity, nonprofit research organizations, or governmental research organizations) who seek employment opportunities with cap subject employers; and
  • Candidates who are in other nonimmigrant work status such as TN, H–3, H–2, O–1, and J–1 but need to change their status to H–1B.

Employers must also be careful to avoid allegations of discrimination on account of citizenship or national origin, so the questions they ask to elicit relevant information regarding the need for work visa sponsorship are critical.