U.S. Citizenship and Immigration Services will begin to accept H-1B cap subject petitions on Tuesday, April 1, 2014. Employers should begin to plan immediately as the demand for new H-1B's is expected to be significant. The quota for FY 2015 is again capped at 65,000 petitions in addition to 20,000 petitions for those beneficiaries with advanced degrees from a U.S. school. All filings made on or after April 1, 2014 would become effective for employment to commence no earlier than October 1, 2014.
As in the past few years, H-1B cases received during the first week of filing, April 1 - April 7, are expected to be treated equally for cap purposes. If USCIS receives petitions in excess of the quotas during these first five business days, it will implement a computerized lottery system to select cases for processing. It is imperative that employers file within this window, ideally on March 31, 2014 via next day delivery, to maximize their chances for success. In FY 2014, the USCIS received approximately 125,000 petitions during the same time frame. Effectively, that means that approximately 40,000 petitions were not even selected for processing.
The H-1B classification is reserved for "specialty occupations". Immigration regulations allow for an individual to remain in the United States in this status for a total of six years. To qualify for H-1B classification, the foreign worker must possess a bachelor's degree in a field related to the position offered from a U.S. college/university or its equivalent. In addition, the U.S. position offered must require a bachelor's degree in the related field as the minimum educational requirement. Persons with degrees from foreign universities may qualify for H-1B classification if a certified evaluating agency determines that the degree is equivalent to a U.S. bachelor's degree. Individuals who have not completed a college degree may substitute three years of professional level experience for each missing year of college. In addition, a key prerequisite to the filing of the H-1B petition is obtaining an approved Labor Condition Application (LCA) from the U.S. Department of Labor. The LCA is a certification by the employer that it will remunerate the foreign worker at or above the 'prevailing wage' for the occupation in the location of intended employment.
Employers should immediately begin to identify individuals who would benefit from H-1B status anytime within the next 12 - 14 months. These can include any new hires, or current employees working on OPT, STEM OPT, or who are interns or trainees. However, not all H-1B petitions are subject to this numerical limitation. Exceptions include extensions, changes of employer, amended petitions and those sponsored by an institute of higher education or non-profit entity or organization.