Immigration

New H-1B visa petitions can be filed with the United States Citizenship & Immigration Services beginning April 1, 2014. Employers seeking to hire professional, foreign workers should contact Blank Rome’s Immigration Team to commence the H-1B visa process. The annual H-1B numerical quota is expected to be reached earlier than in previous years. Therefore, employers hoping to use the H-1B program are recommended to begin the filing process as early as possible.

Background

The H-1B visa is an attractive option for employers that rely on the temporary employment of foreign professionals in the United States. Specifically, this visa category offers work authorization to foreign nationals employed in specialty occupations. A “specialty occupation” is broadly defined as a position requiring at least a bachelor’s degree in a specific academic field. Based on this criterion, the H-1B visa captures a wide range of occupations, making it especially popular among U.S employers.

Congress has set an annual limit for H-1B visas at 65,000 per fiscal year (with an additional 20,000 reserved for occupations requiring an advanced degree from a U.S. institution).1 Given the H-1B visa’s versatility and popularity, this annual quota is often reached shortly after the filing period opens.

The Importance of Early Preparation

The demand for H-1B visas is expected to be even higher this year than last year, when the cap was met during the first week of April 2014. We expect that the cap will be met within the first week of filing this year as well. Petitions are accepted on a “first-come-first-serve” basis. Any applications filed after the cap is met will be returned and cannot be re-filed until the following year.

To maximize the chances that your H-1B petition is included in the cap, Labor Condition Applications (“LCAs”) should be submitted to the DOL by the beginning of March, and petitions should be ready for filing on or before April 1, 2014. Gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming. Preparation includes assembling background and education documents, drafting and signing letters and forms, and submitting an LCA with the Department of Labor for certification. Early preparation is therefore essential.

Evaluating Employees Working Pursuant to Optional Practical Training (“OPT”)

Please consider all F-1 students hired by your company working pursuant to OPT. It is critical that the need for an H-1B visa be considered and evaluated even if the employee currently has employment authorization. Failure to file their H-1B visa this filing season could result in a lapse of employment authorization.