The new H-1B filing period is fast approaching for employers who intend to sponsor a first-time H-1B worker during the next federal fiscal year (i.e., October 1, 2016 to September 30, 2017). The U.S. Citizenship & Immigration Services (USCIS) will begin accepting new H-1B petitions on April 1, 2016. Since all available H-1B visas for the year will very likely be claimed during the first week of filing, employers are strongly encouraged to apply by this date to secure their H-1B visas for the upcoming year. This is of particular concern for workers who are currently on F-1 student visas using Optional Practical Training (OPT) work authorization as well as foreign-born employees who have never held H-1B status.
USCIS grants 65,000 new H-1B visas per federal fiscal year to employers for positions requiring at least a bachelor’s degree in a specialty field. An additional 20,000 new H-1B visas are available for employees with master’s degrees from U.S. universities or colleges. Although this places advanced-degree H-1B professionals in a slightly advantageous position, employers are still strongly encouraged to apply on April 1, 2016 to increase the likelihood of securing a visa before they are all claimed.
As in years past, USCIS will almost certainly receive more H-1B petitions than there are available slots during the first few days of the filing window, triggering a random selection process to determine which petitions will be accepted for processing. In order to obtain a new H-1B visa for an employee, employers are strongly encouraged to file their petitions by April 1, 2016 or risk being unable to employ the candidate in the coming year. We recommend that employers canvass their workforce and potential recruitment pool immediately to determine who is likely to need an H-1B status in the upcoming federal fiscal year.
It is important to note that the upcoming filing period does not apply to employees who already have H-1B visa status, either with their current employer or with a previous employer. It also does not apply to “cap-exempt” H-1B employers such as institutions of higher education, nonprofit organizations affiliated with higher education institutes, and nonprofit research organizations. However, following recent USCIS decisions on nonprofits affiliated with universities, organizations may have a tougher time proving that an affiliation qualifies for H-1B purposes unless USCIS has specifically made a favorable determination on this issue in the past.
Physicians with Conrad 30 J-1 waivers are also exempt from the H-1B cap regardless of the nature of their employer. Cap-exempt employers and physicians with waivers may obtain H-1B status at any time during the year, without regard to the annual H-1B cap. If you are not certain whether a first-time H-1B visa is needed, you should contact an experienced immigration attorney immediately.
For those who are unfamiliar with the H-1B program, USCIS grants H-1B visa status in three-year increments, for up to six years, to qualifying foreign workers. The H-1B employee is authorized to work only for the employer that filed the petition. Assignments to offsite work locations and third-party clients are generally not allowed unless the H-1B employer maintains a traditional employment relationship by supervising and controlling the work of the offsite employee. Employers must offer a salary that meets the prevailing wage for the position in the specific geographic area, satisfy certain mandatory notice requirements and abide by all federal, state, and local employment and workplace safety laws. Quarles & Brady’s attorneys can assist in determining whether the H-1B visa will help you meet your business goals.