Time to Get Ready for the H-1B Season

The most common H work visa is the H-1B which is for “specialty occupations.” A specialty occupation is one that requires at least a bachelor’s degree or its equivalent in a specific field of study as a minimum for entry into a particular occupation. Unlike most of the other temporary visas, an H-1B nonimmigrant is permitted to pursue Lawful Permanent Residence while in the U.S. in H-1B status. Many factors determine H-1B eligibility, including the position’s requirements, duties and salary, as well as the employee’s qualifications.

Employers who wish to hire workers in the H-1B specialty occupation visa category starting on October 1, 2016, cannot file those applications earlier than six months in advance, or prior to April 1, 2016. The government has established an annual quota of 65,000 visas for individuals in the general H-1B category and 20,000 for individuals who possess Master’s degrees from certain U.S. universities.

Last year, the quota for both the general and advanced degree H-1B categories was exceeded during the first five days of filing. U.S. Citizenship and Immigration Services (USCIS) had to conduct a lottery to determine which eligible applicants would be granted H-1B status. It is likely that more businesses will be hiring new employees this year, including foreign-born workers, and thus it is likely that the quota will once again be reached and exceeded, necessitating a lottery.

Note that a number of applicants may be “cap-exempt” and thus not subject to the annual quota. H-1B petitions for such applicants may be filed at any time. For example:

  1. Workers who are currently in H-1B status and applying for extension(s) of stay, moving to another job or amending their previously approved employment;
  2. H-1B workers who are applying to work in a second H-1B position, concurrently with an already-approved H-1B position; and
  3. Workers employed by a non-profit organization affiliated with an institution of higher education, a non-profit research organization, or a governmental research organization.

There may be other strategies to avoid becoming subject to the cap, such as employment with a cap-exempt entity concurrently with a non-cap-exempt entity.

It is crucial to contact experienced immigration counsel far in advance of April 1, 2016 for help with properly filing H-1B petitions subject to the cap. The employer must obtain a certified Labor Condition Application (LCA) from the Department of Labor before an H-1B petition can be properly filed and this process usually takes 7-10 business days. Some employers that have never made immigration filings before typically need to take additional steps which could further delay the filing of the application.

If an H-1B is not properly filed, it will be rejected and it may be impossible to re-file before the quota is reached as it takes several weeks for rejected filings to be returned. For example, if a box is not checked, the proper fee is not filed, a field is left blank, the wrong form revision is used, or other paperwork errors appear, the application could be rejected.

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