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Prepare your H-1B visa petition now and be ready to file with U.S. Citizenship and Immigration Services (USCIS) on the first day petitions are accepted—or you may not stand a chance of having the submission processed, much less approved.
On April 1, USCIS will begin accepting fiscal year 2017 cap-subject H-1B petitions for employees starting work on Oct. 1, 2016.
“In light of what appears to be a rebounding economy, we fully expect that the annual H-1B cap will be exhausted within the first couple of filing days, if not on the first filing day,” said Geetha Adinata, a partner in the Los Angeles and Atlanta offices of law firm FordHarrison.
There are 65,000 H-1B visas in the general category and 20,000 in the advanced degree category; visas in the latter category are for individuals who have obtained a U.S. master’s degree or higher. The cap levels for both categories are expected to be surpassed within the five-day filing period.
“Once the master’s cap is reached, any remaining petitions filed for beneficiaries with a U.S. master’s degree or higher will count against the regular cap,” said Shannon Napier Barnes, a partner at Mehlman Barnes LLP, based in San Diego. 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. Last year, the
government received 233,000 petitions, leaving nearly two-thirds of petitioning employers stranded.
"We expect an H-1B lottery again, which is always a challenge for employers, especially with no significant legislative or regulatory relief in sight for this fiscal year’s cap," said
Rebecca Peters, director of government affairs for the Council for Global Immigration (CFGI), based in the Washington, D.C. area. Only 19 percent of CFGI and Society for Human Resource Management member employers subject to the cap agree there are enough H-1B visas to meet their workforce needs in recent years, she added.
Before filing a petition with USCIS, employers must register their company with the U.S. Department of Labor (DOL), post required notices and obtain DOL certification of a labor condition application (LCA), among other things. (See Preparing to File, below.)
“After the 2016 H-1B quota is exhausted, employers will have to wait until April 1, 2017, to file H-1B petitions again, and employees may risk losing legal status and work authorization,” Adinata said.
Planning Workforce Needs
Employers should have analyzed workforce needs at the start of the year to determine their H-1B hiring plan, according to Barnes. “Many employers are simply unaware of their H-1B hiring needs until it is too late,” she said. “This is often the result of there being too many people involved in the hiring process and the lack of communication between management, HR and talent acquisition teams.”
Conduct a full-scale data analysis to ensure that any current employees on temporary visas are at least considered for H-1B visas, Barnes advised. Employers will need to ascertain whether the individuals qualify for H-1B visas, which are meant for jobs in “specialty occupations” that require at least a bachelor’s degree. Workers in the U.S. currently holding F-1 student visas, J-1 exchange visitor visas or TN visas for Canadian and Mexican nationals, among others, could qualify. Prospective employees living abroad and meeting H-1B visa eligibility requirements could also be sponsored to work for a U.S. company.
HR will also have to figure out whether prospective hires are subject to one of the H-1B visa caps. For example, employees working for certain employers, including universities and nonprofit and government research institutions, are not subject to either H-1B cap, and some U.S. master’s degrees may not qualify an individual for the advanced degree cap if the institution that issued the degree is private and/or for-profit.
Preparing to File
The process for
completing an H-1B petition can take several weeks and requires both the employer and the visa beneficiary to provide information and documentation.
“There is a lot of information and document collection that occurs between immigration legal counsel and the petitioning employer, such as collection of wage information and resolution of any wage issues, fulfilling posting and notification requirements, finalizing terms of employment, and assessing job descriptions and requirements,” Barnes said.
Most employers open cases in late January to early February, said Karen Gillespie, a Chicago-based immigration attorney on retainer with Visanow, a company providing immigration process services. “By starting early, you are likely to get more attention from your attorney and more time to correct and identify any possible issues.”
First, the employer must file an LCA with the DOL. The LCA is used to determine what the prospective worker should be paid based on the occupation, the work to be performed and the geographic area where the worker will be employed. Once the LCA is filed, the DOL typically takes a week to process the application.
“It’s best to file the LCA in February or early March,” Gillespie said. “It can be risky to file in late March. If there’s an unanticipated delay, the LCA won’t be certified before the filing deadline in early April.”
Once it has received a certified LCA, the employer must draft a Form I-129 petition for the H-1B visa. Form I-129 requires detailed information from the employer as well as the prospective worker.
Required information from the employer includes:
Required information from the employee includes:
The employer must also submit a letter explaining why the position should be considered a specialty occupation and why the prospective worker is qualified to be employed in that occupation.
Proofread the form. Errors that could result in rejection include a missing signature, a wrong box checked or a typo on the form. Rejection at this stage is fatal, as it will be too late to refile.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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