By Attorneys Nancy E. Miller & Joseph Elias
The H-1B filing season is upon us. Beginning April 1, 2014, employers may file H-1B petitions for specialized knowledge professionals. An approval permits foreign workers to begin employment in their specialty occupation on October 1, 2014. The reason employers need to begin preparing H-1Bs now is because the supply of visa numbers is limited. There are only 65,000 available visa numbers for H-1Bs, 20,000 of which are allotted to workers who obtained advanced degrees in the US. Last year the H-1B quota was exhausted within the first week of the filing period in April and, the year before that in less than 3 months.
While these are promising signals that the economy is heating up, employers and H-1B workers will have to scramble for this year’s visa numbers until Congress acts to increase the quota. We anticipate the quote will be exhausted within the first two weeks of April this year. Since the quota is expected to be quickly reached, H-1B petition preparations should be well under way at this point. Those people looking for petitioners should intensify their job search right now to ensure sufficient time for an H-1B petition to be prepared for filing before the end of the year.
Last year, the USCIS reported that it received approximately 124,000 H-1B petitions during the first week filing period, including petitions filed for the advanced degree exemption. This required the USCIS to employ a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. Those petitions not randomly selected were rejected by the USCIS and returned with the filing fees.
Only properly filed petitions are accepted by the USCIS and applied towards the quota. H-1B petitions cannot be prepared and filed overnight. The H-1B preparation process involves obtaining a labor condition application (LCA) from the US Department of Labor prior to filing the petition. This can take from 5 to 10 business days to process further delaying the filing of an H-1B petition. It is therefore of the utmost importance that H-1B petition preparations be started as soon as possible to ensure filing before the visa quota is met.
Not all H-1B workers are subject to the quota. H-1B beneficiaries who were previously granted an H-1B quota number, and who have not exhausted the 6-year limitation on H-1Bs are amongst those not subject to the quota. Immigration law also exempts from the H-1B quota beneficiaries who will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations.
The difference between H-1B quota subject and quota exemption raise the following frequently asked questions.
What does it mean when the H-1B cap is reached?
This means that if an employer is petitioning to change your status to H-1B (for example from student or tourist status to H-1B), and the petition is received after the cap is met, the change of status cannot be granted.
I am in H-1B status now and I have filed an extension or I will be filing an extension. Will I be in danger of missing the cap? Will I go out of status?
No. The H-1B cap only applies to new H-1B petitions. If an employee is already in H-1B status and is being petitioned by the same employer or even a new employer, that employee is typically not subject to the cap.
I am not in H-1B status now. There is an employer who is willing to sponsor me. What should I do with the cap end approaching?
You should begin processing the H-1B petition as soon as possible. The longer you delay, the more likely it is that you won’t get a visa number.
If my petition is selected, can I start working right away while the USCIS is processing it?
Generally, no, unless you are already in an employment authorized status such as F-1 with Optional Practical Training (OPT). Otherwise, you cannot begin employment until the H-1B petition is approved and it is October 1 or later.
Those who require H-1B petitions must coordinate with their immigration lawyers right now to ensure that they are on track for an early filing. In all likelihood, there will be no opportunity for a filing after the first week of April this year.