On Tuesday April 1, 2014, the United States Citizenship and Immigration Service (“USCIS”) will begin accepting petitions filed by US employers seeking to employ foreign professionals in the United States starting on October 1, 2014. An H-1B nonimmigrant petition may be filed on behalf of a foreign national if the proposed position in the United States qualifies as a “Specialty Occupation” as defined by statute.
In order for a job position to qualify as a specialty occupation, a US employer must prove that the duties of the proposed position require the attainment of a Bachelor’s degree or higher in the specialty field, and that the foreign national holds the relevant academic degree. In the absence of the required academic degree, a foreign national may qualify for H-1B classification based on a combination of education, training and/or experience in the specialty field.
Each year, the US government sets aside an annual quota of 65,000 H-1B visas (the “H-1B cap”) for the employment of foreign professionals in the United States. An additional 20,000 H-1B visas are allotted for foreign nationals who have attained a master’s degree or higher in the specialty field, if the degree was awarded by a school which meets the definition of “an institution of higher education” under 101(a) of the Higher Education Act [INA 214(g)(5)(C)]
Annual numerical limitations placed on the H-1B category, coupled with the growing demand for the employment of foreign professionals in the United States, has created a situation in which US employers must act quickly to file H-1B cap-subject petitions on the first day of the filing period for FY 2015.
To illustrate, USCIS reported that it had reached the non-master’s degree cap within the first week of the filing period for FY2014. Due to high volume of H-1B petitions received last year, USCIS used a random selection process or “lottery” to select a sufficient number of petitions required to meet the cap of 65,000. The same process is expected to be implemented by USCIS this year.
For planning purposes, employers should be advised that there are number of procedural steps which must be taken prior to filing the H-1B petition with USCIS including: Pre-verification of the employer’s US Federal Employer ID Number (FEIN) and filing of a Labor Conditions Application (LCA) with the United States Department of Labor; wage determinations; and evaluation of the foreign national’s academic degree.
While there is a great deal of speculation surrounding the FY 2015 cap forecast, there is no way of knowing if and when this year’s quota may be reached. For this reason, we wish to remind employers that it is imperative to begin preparing H-1B petitions now in order to meet the April 1st filing deadline.