U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting cap-subject H-1B petitions on April 1, 2014 for Fiscal Year (“FY”) 2015. Employers should be aware of this fast-approaching deadline to maximize the possibility of obtaining H-1B spots for foreign national employees.
Background
H-1B classification is designed for foreign workers in professional occupations that require at least a bachelor’s degree or the equivalent. There is an annual limit of 65,000 H-1B spots available each year and an additional 20,000 spots for individuals with U.S. master’s degrees or higher. Cap-subject H-1B spots become available each year on October 1, and USCIS permits filing up to six months in advance. Consequently, the filing window opens on April 1.
For FY 2014, USCIS received 124,000 H-1B petitions during the filing period. Once the H-1B cap was reached, USCIS instituted a computer-generated lottery system to select a sufficient number of petitions for review. The thousands of petitions that were not selected for review were returned to the respective petitioners. Given this high demand, it is critical that employers consider these timeframes so that individuals who require cap-subject H-1B spots on October 1, 2014 have petitions filed on April 1, 2014.
Recommendation for Employers
The number of cap-subject H-1B filings has been steadily increasing each year since 2008, so it is likely that a lottery will be necessary again this year. Therefore, it is critical for employers to identify any employees who may need H-1B sponsorship as soon as possible in order to file on April 1, 2014. Otherwise, individuals requiring H-1B sponsorship may need to exit the U.S. and wait until next year to refile.
Importantly, the April 1 deadline applies to H-1B petitions where neither the employee nor employer is exempt from the cap. Some employers are cap-exempt, including nonprofits related to or affiliated with institutions of higher education, and foreign nationals may be exempt from the cap if they were already counted against the cap, are filing petitions to extend or amend their current H-1B status or are physicians who received Conrad 30 Waivers. Also, the first 20,000 cap-subject H-1B petitions for foreign nationals with U.S. master’s degrees or higher are exempt. Those foreign nationals with advanced U.S. degrees who are not among the first 20,000 petitions filed will be included as part of the regular cap of 65,000.
We recommend contacting your Hall Render attorney to anticipate H-1B filing needs and begin the process as soon as possible. Early preparation is key, as it may take several weeks to prepare and file an H-1B petition.
For more information about the H-1B process, please contact Natalie Murphy at 317-977-1481 or nmurphy@wp.hallrender.com, Michael Kim at 317-977-1418 or mkim@wp.hallrender.com or your regular Hall Render attorney.
Special thanks to Janice Pascuzzi, Law Clerk, for her assistance with preparation of this blog post.
