Employers seeking high-skilled foreign talent must start identifying those who need sponsorship for new H-1B visa petitions now, well ahead of the April 1, 2014, start of the filing season.
On April 1 U.S. Citizenship and Immigration Services (USCIS) will accept cap-subject H-1B petitions for fiscal year (FY) 2015 for workers starting work on Oct. 1, 2014.
USCIS will accept new H-1B petitions after April 1 but only until the H-1B cap is reached.
“Last year the H-1B cap was reached in the first week,” said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. “In fact, USCIS received 124,000 cases that week for only 85,000 total new H-1Bs, meaning employers had about a 68.5 percent chance of having their case selected in the lottery even if they filed on time. With the economy continuing to improve, and since employers haven’t been able to file since April 5 of last year, I expect there will be even more filings this year—perhaps significantly more.”
Storch strongly recommends that companies ensure that their petitions arrive at a USCIS service center on April 1. That means mailing them by March 31. “If there’s an issue such as a storm or event that prevents normal delivery, you want to ensure you have an extra day or two to get your petition to the service center within the first few days,” he said.
Once the H-1B cap has been reached, employers must wait to file new petitions until April 1, 2015.
The H-1B is the most popular visa category among employers seeking work authorizations for foreign nationals in a variety of professional occupations, including engineering, biology, computer science, accounting, teaching and sales/marketing. There are 65,000 H-1B visas available to U.S. employers, though an additional 20,000 are set aside for individuals who have obtained a U.S. master’s degree or higher. Only new H-1B petitions are affected by the cap. Petitions for workers who are already in H-1B status or have previously held an H-1B are not affected.
If USCIS receives more than 85,000 H-1B cap-subject petitions, it holds a lottery to select the petitions it will process; all others are rejected.
Employers need to do everything they can to make sure their H-1Bs are ready to file on day 1, said Storch, which means allowing sufficient time for petition preparation, including actions such as determining the prevailing wage rate of the intended occupation, and filing and receiving certification of a Labor Condition Application (LCA).
“You want to make sure you don’t have any prevailing wage determination issues, and if so, that you give yourself enough time to seek an alternate wage source to the Department of Labor’s (DOL) online wage data, such as an appropriate survey,” advised Andrew Wilson, a partner in the immigration law firm Serotte Reich Wilson, based in Buffalo, N.Y. “If you do need to utilize an alternate survey, you need time to properly research which ones are available, and which ones meet DOL criteria.”
The LCA, which is submitted online to the Labor Department, is a prerequisite for an H-1B visa petition. On the application a business attests it will pay the H-1B worker the higher of the prevailing wage or actual wage for that position in the geographic area of intended employment.
In some cases, the LCA can be delayed because the DOL requires additional information and documentation to confirm the proposed employer’s operations, said Wilson. “This is particularly true for newer and smaller businesses,” he added. Also, if you’re using an alternate source for the prevailing wage determination, the LCA can be delayed as the DOL reviews that information, he said.
“The LCA process generally takes seven days, and last year the DOL did a great job certifying LCAs expeditiously, even during H-1B season,” said Storch. “However, you don’t want to be the guy who didn’t get his LCA filed on time if something goes wrong—if processing times are slower than predicted or if there are technical problems with the website.” One such example is the intermittent problems and outages that have plagued the department’s iCert website since the October 2013 federal government shutdown, he recalled. “There’s always a possibility that limited bandwidth could prevent some employers from getting their LCAs filed in a timely fashion, so don’t wait until the last minute.”
Not Subject to the Cap
Cases not subject to the H-1B cap include:
- Foreign nationals already counted toward the cap in a previous year who have not been outside the United States subsequently for a year or more.
- Foreign nationals already in H-1B status who are petitioning to change employers.
- Petitions to extend or amend H-1B status.
- Petitions for H-1B concurrent employment.
- Petitions filed by certain institutions of higher education, governmental research and nonprofit organizations.
- Petitions for Chilean, Singaporean and Australian nationals. Free trade agreements require USCIS to exempt 6,800 H-1B visas from the cap for eligible citizens of Chile and Singapore. Another annual quota of 10,500 E-3 visas is specifically for Australian citizens.
If the H-1B visa option becomes unavailable, Wilson advised employers to consider these alternatives:
- For Canadian and Mexican professionals, TN visas under the North American Free Trade Agreement.
- For intracompany transferees, L-1 visas. If an organization has foreign operations, this visa permits employees to transfer to the U.S.-affiliated company in a similar position if they have worked abroad for the foreign parent, subsidiary or affiliate continuously for at least a year within the preceding three years as an executive, manager or in a specialized-knowledge capacity
- If the employer is enrolled in E-Verify and the individual has a degree in a science, technology, engineering or math field, the 17-month optional practical training (OPT) extension.
- For those who may qualify under extraordinary ability criteria, the O-1 visa.
- For nationals of Australia, the E-3 visa.
- For nationals of Chile or Singapore, the H-1B1 visa.
- For essential employees if the company and foreign national share the same nationality, the E-2 visa.
- For those in F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training (CPT).
- For those that may qualify under EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent I-140/485 green card process.
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
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