As most H-1B employers know, there is an annual quota on the number of new H-1B petitions that can be approved each federal fiscal year. The quota is 65,000 for regular H-1B petitions, plus another 20,000 for H-1B petitions filed for foreign nationals ("FNs") who have obtained a master's degree or higher from an accredited American university. The federal government's fiscal year runs from October 1 through September 30, so fiscal year 2015 will begin on October 1, 2014. Employers are eligible to start filing H-1B petitions for inclusion in the fiscal year 2015 quota on April 1, 2014, but they cannot secure a start date prior to October 1, 2014. If the U.S. Citizenship and Immigration Services ("USCIS") receives more H-1B petitions than these limited quotas allow, it will conduct a random lottery of all petitions filed on or before a specific date. Last year, the USCIS included all new H-1B petitions filed through April 5, 2013, the conclusion of the first week of filing. If this year's program operates in a similar fashion, the USCIS will accept for inclusion in the lottery all new H-1B petitions received between April 1 and April 4, 2014.
As the U.S. economy improves, the likelihood is that more employers will submit H-1B petitions for inclusion in the 2015 H-1B quota. Last year, the quota was reached on April 5, 2013, the end of the first week. This year, predictions are that there will be significantly more applicants for inclusion in the 2015 quota; thus, the probability for acceptance will be even less than last year. Employers need to assess their workforce requirements, determine what H-1B petitions they plan to file, and get them submitted on or shortly after April 1, 2014. They also need to examine contingency plans on how to handle sponsored employees in the likely event that H-1B petitions on their behalf are not accepted in the quota. Finally, employers recruiting potential H-1B candidates need to assess the challenges that the H-1B program poses in deciding whether to extend employment offers to FNs who might require H-1B sponsorship. As we have noted in prior Alerts, there is no legal restriction on asking questions about immigration status and the need for sponsorship as long as the questions are specific and the answers not used in a discriminatory manner.