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With this year’s H-1B cap fast approaching, employers should be aware of key deadlines leading up to the cap’s opening on April 1, 2014. As this chart illustrates, employers must file Labor Condition Applications (LCAs) with the U.S. Department of Labor (DOL) on or before March 25, 2014 to have a good chance of the LCA being certified by March 31, 2014, which is the earliest date employers can file H-1B petitions under this year’s cap. Pursuant to a March 19, 2008 regulatory change, the H-1B cap must remain open for at least five business days before U.S. Citizenship and Immigration Services (USCIS) can announce that it has received a sufficient number of H-1B petitions and the cap is closed. As such, the last day USCIS will accept H-1B filings is April 7, 2014, so employers must file LCAs no later than March 28, 2014 to receive a certified LCA by April 5, 2014, which will be the last day that employers can file H-1B petitions for delivery at USCIS on April 7, 2014. All H-1B petitions must be filed with a certified LCA or they will be rejected by USCIS as incomplete filings. Under current processing times, the DOL is taking at least seven days to certify a LCA, therefore submitting a LCA to the DOL after March 28, 2014 runs the risk of it not being certified until after the five business day filing period has closed and consequently missing the cap altogether. Employers that employ H-1B workers in the same position and location should consider securing a blanket LCA for multiple positions to avoid waiting seven days for a certified LCA and allow for any last minute filings that often arise each cap season. USCIS will likely use the weekend of April 5th and 6th to conduct a count of the number of petitions it has received, so that by the end of April 7, 2014 it is in a position to announce quickly that this year’s cap is closed and all the H-1B petitions it received prior to the cap’s closing will be entered into a computer-generated randomized lottery selection.
Greenberg Traurig (GT) anticipates that the demand for H-1B petitions this year will be much higher than the number of H-1B petitions being made available to employers: 65,000 in the general category; and another 20,000 set aside for individuals with a U.S. Master’s degree or higher. Casualties, therefore, are expected to be high, with up to 40% to 45% of all H-1B petitions filed under this year’s H-1B cap being rejected and returned to employers. Any employer that files more than one H-1B petition for the same employee will result in USCIS denying all H-1B petitions filed for that employee — employers can only file one H-1B per employee. Employers should also note that any H-1B cap case that is premium processed will not be given a selection priority or preference over regularly filed H-1B cap petitions—both premium processed and regularly filed cases will be subjected to the same randomized lottery selection process.
Finally, with such a high rejection rate anticipated in this year’s H-1B cap, it is recommended that employers assess contingency plans for each employee they are sponsoring, particularly considering that next year’s cap will not open until April 1, 2015 for October 1, 2015 start dates. Such contingency plans include: (a) reviewing alternative work visa options; (b) determining whether a student candidate who holds F-1 Optional Practical Training (OPT) work authorization is eligible for a 17-month OPT extension because the candidate holds a U.S. Science, Technology, Engineering or Math (STEM) degree and the employer is enrolled in E-Verify; (c) having the employee work abroad at a related foreign entity of the U.S. company and returning to the country after a year on a L-1 visa; or (d) exploring whether the candidate can enroll in a U.S. academic program and secure U.S. work authorization. All employers should remind recruiters and managers to prepare any individual being sponsored in this year’s H-1B cap for possible rejection and to avoid creating an implied employment contract by guaranteeing an H-1B petition will be secured.