Action Required Now
Now is the time to consider filing H-1b petitions for employees working overseas, or in F-1 status, as well as for those in L-1, L-2 or TN status. On April 1, 2015, the U.S. Citizenship and Immigration Services will start accepting filings of new H-1b petitions for the fiscal year which begins on October 1, 2015. There is an annual “cap” on new petitions. Less than 65,000 can be approved subject to the cap. An additional 20,000 petitions can be approved for “cap exempt” aliens (i.e. those who have master’s degrees from U.S. universities.)
Last year the “cap” was reached in the first week. We expect this year to be the same. If the cap is reached in the first week of April, all applications received that week will be subject to a lottery selection process. Those received later will be returned!
What This Means to You
If you have employees who will be needing H-1b sponsorship any time between now and October 1, 2016, you should be prepared to file an H-1b petition before the end of the first week in April 1, 2015. This includes current non U.S. employees who are not now in H-1b status, and whose employment authorization will end before October 1, 2016. (April 1, 2016 for those who have F-1 OPT through that date.)
Plan on filing April 1st for F-1 students with optional practical training to keep them employed after the expiration of their current employment authorization.
A new H-1b petition will grant H-1b status no earlier than October 1, 2015. An employee whose F-1 OPT employment authorization expires before that date and for whom an H-1b petition is filed while they still maintain employment authorization, will have their employment authorization automatically extended through October 1, 2015 (or the date of return or adjudication, if their H-1b petition is rejected or denied.)
Once the H-1b cap is reached, the USCIS will no longer accept new cap subject applications for H-1b status for the fiscal year which begins October 1, 2015 and ends on September 30, 2016.
What You Should Do Now
Identify any current employees who have temporary work authorization such as F-1, L-2, E or TN. In some cases you may want to consider filing H-1b petitions for L-1a or L-1b employees to avoid the five or seven year limit on L-1 stays.
Notify your recruiters that before offering employment to new graduates with optional practical training, they should verify that employment authorization extends at least until an H-1b petition may be filed on their behalf. They should notify HR immediately so that an application for H-1b change of status can be promptly prepared and filed.
Contact our office. As soon as you identify current employees or new hires who will need H-1b sponsorship, notify our office immediately so we can prepare the documentation necessary to begin process.
Petition for L-1b employees you want to keep beyond five years. Because L-1b employees are limited to five years, and H-1b employees may be extended indefinitely once a preference petition is approved, consider filing petitions to change your L-1b employees to H-1b. Don’t wait until the fourth year - as the chances of any particular application being selected in the H-1b lottery in the future is not guaranteed, and may be less than 50% if H-1b cap demand continues at recent levels.
Petition for some TN employees. If you may be filing labor certification applications for employees currently in TN status, consider filing for change to H-1b status now. “Dual intent” (immigrant and nonimmigrant) is consistent with H-1b status - not with TN. Therefore, renewing TN status may be difficult once the labor certification/preference process begins.
Consider applying for H-1b this year for F-1 students eligible for STEM extensions. Although STEM eligible students may be eligible to apply for H-1b status next fiscal year (April, 2016), filing this year will maximize their chances of “winning” the H-1b cap lottery.
The limit on new H-1b petitions does not apply to renewals or H-1b transfers. You may continue to file petitions for aliens already in H-1b status who are changing employer, taking a second job, changing the terms of employment, or extending their stay - provided their previous employment was not exempt from the H-1b cap.
Employees of institutions of higher education, and of some non-profits affiliated with institutions of higher education may not be subject to the H-1b cap - until they change employers.
An alien who had an H-1b within the last six years, and who has not left the U.S. for over a year, is not subject to the “cap.“
There are reserved H-1b numbers for people from Singapore and Chile. If your employee is from Singapore or Chile, H-1b visas should be available well into next fiscal year.
Australians who would qualify for H-1b will often qualify for E-3 visas which are not subject to the same cap.
Canadians and Mexicans may qualify for TN visa status.
There is a six year limit on the total amount of time an alien can spend in the U.S. in H-1b status, unless ...
- they leave the U.S. for at least a year, in which case the six years starts over - and they must qualify under the cap again, or
- an application for labor certification is filed before the end of their 5th year in H-1b status, and
- has not been withdrawn or denied, or
- a preference petition (I-140) has been filed and approved for the alien, and a visa number is not currently available.