Why is April 1, 2014 Important?

April 1, 2014 is the first day on which U.S. Citizenship and Immigration Services ("USCIS") may receive H-1B specialty worker petitions for the next fiscal year that begins on October 1, 2014. To qualify for the H-1B category, the position offered must be a specialty in which a bachelor's degree or its equivalent is normally the minimum requirement and the foreign national must hold a bachelor's level degree or its equivalent in the specialty defined by the position (this threshold can be met in some cases through a combination of education and work experience).

Due to the overwhelming demand for the annual allotment of 85,000 visa slots, employers who wish to file new H-1B petitions for current or future employees should plan to do so on April 1st. The number of H-1B approvals requested by employers has reached the annual H-1B “cap” every year for over 10 years. In fact, for Fiscal Year 2014 USCIS received 124,000 petitions within the first week of filing. USCIS was required to conduct a lottery to randomly select which petitions would be reviewed and considered for H-1B status. Those petitions not selected for processing were rejected and some foreign nationals were required to leave the United States while others were forced to make alternative plans on an emergency basis.

Are There Certain Employees In Particular Who Should Be Considered? Yes, three situations come to mind:

  • Students who hold F-1 visa status and who are working for your organization under a grant of Optional Practical Training work permission
  • Some L-1 Intracompany Transferees who work for your organization
  • Candidates who are not yet working for your organization but whom you have an interest in employing in the future (starting between October 2014 and October 2015)

F-1 Students and L-1 Transferees have limited-duration work permission. If you wish to continue employing these individuals beyond their current authorization, the H-1B category may be an option.

Why F-1 Students?

Many F-1 students hold post-graduation Optional Practical Training work permission that is limited to no more than one year. Other F-1 students may be eligible (in some cases) for an additional 17 months of Optional Practical Training work permission.

Why L-1 Intracompany Transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial, or specialized knowledge capacities for at least one year with a commonly-owned foreign company, and who are in the United States to continue providing services to the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years.

Are There any Exemptions from the Annual H-1B “Cap”?

Persons already counted under the H-1B cap and who need an extension of H-1B status are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a different employer are exempt from the cap. The limitation applies only to persons not yet counted against the annual H-1B cap. Also, certain types of higher educational or nonprofit research organizations that file H-1B petitions are exempt from the H-1B numerical limitation.

Contacting Dinsmore About Filing an H-1B Petition

If you have not already contacted Dinsmore about filing an H-1B petition for an employee who needs to enter the H-1B category, please do so immediately.