Cap-Subject H-1B Petitions for FY 2015 Should Be Filed with USCIS on March 31, 2014

U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B petitions to be counted toward the annual H-1B quota (the “H-1B cap”) for fiscal year (FY) 2015 on Tuesday, April 1, 2014. USCIS will not accept H-1B cap submissions before April 1. We expect that this year, as in prior years, the H-1B cap will be met as early as the first few days of filing.

Once the H-1B cap is met, USCIS is expected to adopt a “random lottery” process to allocate the H-1B cap numbers. Accordingly, employers are strongly encouraged to plan ahead for H-1B filings. Employers should identify current and future employees who will need H-1B visa status, typically including individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B from another employment-based status (such as L-1, TN, or E-3), and individuals outside of the United States seeking to enter the United States for employment on October 1, 2014, or later.

The annual limit for new H-1B visas is 65,000 (6,800 of which are set aside for nonimmigrants who are citizens or nationals of Chile or Singapore). In addition to the regular cap or quota, there are an additional 20,000 H-1B visas available to beneficiaries who completed an advanced degree (e.g., a master’s degree or higher) from a U.S. academic institution prior to submission of the H-1B petition on April 1. In FY 2014, USCIS received 124,000 H-1B petitions—far more than the limited number available to new applicants that year.

As such, we strongly recommend that employers work quickly to file all new cap-subject H-1B petitions on March 31, 2014 to maximize opportunity for selection under the H-1B lottery. Employers should allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA), which is submitted for review and certified by the U.S. Department of Labor (DOL).  The current LCA processing time is approximately 7 to 10 days, and employers must take this additional processing time into consideration to guarantee the timely certification of the LCA and the ability to submit the completed H-1B petition on March 31, 2014. Therefore, employers that would like to initiate any new H-1B petitions should contact Ogletree Deakins’ immigration team as early as possible.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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