April 1, 2016, marks the date when U.S. Citizenship & Immigration Services (USCIS) will start accepting cap-subject H-1B petitions. As we brace for what is expected to be the busiest H-1B cap season since the economic downturn, the time to start preparing is now.
By way of background, the H-1B nonimmigrant visa category is available to employers wishing to hire foreign workers in “specialty occupation” positions. Under the regulations, a “specialty occupation” is an occupation that requires the theoretical or practical application of a body of highly specialized knowledge. Examples of common specialty occupations include engineers, architects, mathematicians, teachers, doctors, computer programmers, physical therapists, accountants, and lawyers, among others.
In order to qualify for an H-1B visa, a foreign national must possess at least a bachelor’s degree or higher (or its equivalent) in their relevant field of work. In other words, the degree requirement for the job must be common to the industry or the job to be performed by the H-1B worker must be so complex or unique that the knowledge required to perform the duties of the position is usually associated with the attainment of a bachelor’s degree or higher. Alternatively, a foreign national can show fulfillment of this requirement by a combination of education, training, or progressively responsible experience in the specialty occupation that is evaluated to be the equivalent of the completion of a bachelor’s degree or higher.
Congress places a limit – a cap – on the number of new H-1B visas that can be issued in a given fiscal year. Only 65,000 new H-1B visas are available each year with an additional 20,000 visas reserved for professionals who have completed a U.S. master’s degree program. (Note that specialty occupation workers from Australia, Chile and Singapore can qualify for alternative specialty occupation visas and thus are able to avoid falling within the H-1B cap limits. Also, an H-1B worker who was previously approved for a cap-subject petition can port their H-1B visa to a new employer in order to use the time remaining on the six year limit in H-1B visa status. Finally, certain employers such as nonprofit institutions or higher education and affiliated entities and nonprofit research or governmental research organizations are H-1B cap-exempt.)
Last year, USCIS received 233,000 H-1B petitions including petitions filed for the advanced degree exemption. That’s nearly three times the number of available visas. An even higher volume of petitions is expected this season.
Based upon the above, Greenberg Traurig’s Business Immigration & Compliance group strongly urges employers to consult with their counsel for information on filing H-1B cap-subject petitions with USCIS as early as possible, in order to provide the best possible chance for acceptance of the H-1B petition.