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Visa lottery odds likely to be less than 50 percent
Employers should be well on their way to initiating and preparing their H-1B cap-subject visa petitions for the 2016 fiscal year (FY) deadline, which is now less than two months away.
“I cannot stress [enough] that time is of the essence here,” said Shannon Napier Barnes, partner at Mehlman Barnes LLP, based in San Diego. With the demand for H-1B cap-subject visas exceeding the supply in recent years, employers must initiate these petitions early in order to ensure that the petition can be fully prepared and filed with U.S. Citizenship and Immigration Services (USCIS) by April 1, 2015, she said.
On April 1, USCIS will open the floodgates and begin accepting FY 2016 cap-subject H-1B petitions for workers starting work on Oct. 1, 2015. “Like last year, this year’s H-1B cap is expected to remain open for the mandated five-working-day period—April 1 to April 8—and then abruptly close following an announcement by USCIS that it has received a sufficient number of petitions to meet the H-1B quota,” said Ian Macdonald, a shareholder in the Atlanta office of Greenberg Traurig and the firm’s business immigration and compliance practice group leader.
The H-1B visa cap rests at 65,000 in the general category and 20,000 in the advanced degree category—set aside for individuals who have obtained a U.S. master’s degree or higher—and is 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,” added Barnes.
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 over 172,500 petitions, more than double the quota, leaving about half of petitioning employers stranded. Business immigration practitioners predict that this year’s H-1B demand will be even greater.
“I wouldn’t be surprised if there are over 200,000 petitions this year,” said Kim Thompson, a partner in the Atlanta office of Fisher & Phillips and chair of the firm’s global immigration practice group. Reaching 200,000 petitions would be a record. “It’s been increasing every year, the economy is getting stronger and I think we’ll see a lot of people who were not picked last year resubmitting,” Thompson said.
As a result of the expected demand, it is likely that more than half of all H-1B petitions filed by employers will be rejected by USCIS due to the randomized lottery system. Any foreign nationals seeking immigration and employment authorization sponsorship with an employer who are not chosen by the lottery will be forced to wait another year to reapply, and thus the earliest possible date when they could begin working on an H-1B visa would be Oct. 1, 2016.
“In such cases, employers will need to look at alternative visa options for employees unable to secure an H-1B visa,” said Macdonald. Only new H-1B petitions are affected by the H-1B cap. “H-1B petitions involving an individual who has already been counted against the cap or who has previously held H-1B status are not affected by the cap,” Macdonald added.
What You Should Have Already Done
Employers should have analyzed workforce needs at the start of the year to determine their H-1B hiring plan, according to Barnes. It’s surprising to find out “how 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.”
Sometimes the immigration component of workforce planning gets lost and needs to be more of a focus, especially if you’re anticipating needing skill sets that you can’t find in the U.S. workforce, said Thompson. “For example, some clients don’t realize that they have a population of work-authorized F-1 visa students already in their workforce with expiring visas who need to be submitted for the H-1B cap this year,” she said.
Employers should plan ahead and conduct a full-scale data analysis to ensure that any current employees on temporary visas are at least considered for the H-1B visa, said Barnes. HR should play an active role in proactively communicating with management regarding the staffing structure of their teams. “If HR remains unaware of the need for longer-term retention of [temporary visa status] employees, the H-1B cap can pass by, leaving management and employees in a state of disbelief that there may not be any other options available,” Barnes said.
Reviewing the company’s I-9 forms can ensure that all employees with temporary visa status at your organization have been accounted for and considered for H-1B status, she added.
Employers should also ascertain whether individuals qualify for an H-1B visa, which is meant for jobs in “specialty occupations” that require at least a bachelor’s degree, and whether individuals are subject to one of the caps. For example, 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.
What You Should Be Doing Now
The process for completing an H-1B petition can take several weeks and requires both the employer and the worker 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, assessing job descriptions and requirements,” said Barnes, emphasizing that all these tasks can’t be completed overnight.
First, the employer must file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL). The LCA is used to determine what the prospective worker should be paid based on the occupation, work to be performed and the geographic area where the worker will be employed. Once filed, the DOL typically takes a week to process the application.
“It is critical that employers take note of the absolute latest cutoff dates for filing LCAs,” said Macdonald. “We’re filing LCAs now for processing, to have them back by the end of February,” said Thompson. “Employers should have at least provided the job description and offered rate of pay by now, so we can research the prevailing wage for that position,” she said.
Thompson said this step in the process can sometimes trip employers up, as some have been surprised with the prevailing wage finding. “It could be a hard stop if the employer is not willing to increase the offered wage.”
Another early obstacle is not having a DOL-cleared federal employer identification number (FEIN). “If the FEIN has not been cleared or is not accepted when you submit your LCA, you will be denied. Getting clearance is an important initial step and relatively easy for your immigration legal counsel to check,” Thompson said.
The sponsoring company will have to register its FEIN with the DOL if the company has never sponsored an H-1B petition previously, said Macdonald. And it’s not unheard of for the DOL’s online filing system to have system outages causing delays close to the opening of the April 1 filing window, added Barnes.
Once it has received a certified LCA, the employer must draft a Form I-129 petition for the H-1B visa. The Form I-129 requires detailed information about the employer as well as the prospective worker. Required information from the employer includes: job title, job description, job location, minimum education and experience required for the position, and offered wages or salary. Required information from the employee includes: resume, educational documents (diplomas and transcripts), and any documents related to prior or current U.S. immigration status. Documents that are not in English must be translated. 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.
If the employee has any international travel plans during the filing period, that can negatively impact the process, noted Barnes. “The expectation must be set by HR up-front that if the employer is going to assume the burden of petitioning as a sponsoring H-1B employer, the employee must cooperate fully and disclose information and documents promptly,” she said.
It’s also critical that the petition be submitted without any errors that could result in rejection. Common technical errors 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.
USCIS has released helpful H-1B petition filing tips to assist employers in avoiding both petition rejection and the dreaded agency requests for additional evidence.
What You Will Need to Do Next (and Just in Case)
Well-prepared employers may have already completed their petitions and may be ready to file on March 31, for delivery to USCIS on April 1. But remember, meeting the deadline doesn’t mean success.
“Lottery numbers are selected at random, and so the diligent employer must be prepared for the disappointment that their petitions might not be selected in the lottery,” said Barnes.
Communication on this point from HR to concerned stakeholders is key. “This type of news is better to know up-front and to be communicated with management early, so that all stakeholders involved are aware of the risks,” said Barnes. “This will prepare the company to reassess staffing needs come mid- to late April, in the event that an H-1B lottery is implemented and the petition is not selected.”
If the H-1B visa option becomes unavailable, employers can consider several alternatives, including:
“Sometimes, but not always, there are backup options available that employers may not be aware of,” Barnes said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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