Déjà vu All Over Again: Planning For New Hires In Light of The H-1B Visa Lottery

For the second year in a row, the United States Citizenship & Immigration Service (USCIS) has received more petitions in the opening week of H-1B visa season than the number of visas that are available for the entire year.  This is true of both the “standard” and “U.S. advanced degree” caps.  Consequently:

  • The USCIS will conduct a lottery to determine which petitions will be processed from among those received between April 1 and April 7, 2014.  Even petitions from employers who submitted their materials on the very first day the application window opened will be subject to the whim of chance; and
  • For those whose petitions are not already on file and get selected in the lottery, it will be impossible to get a cap-subject H-1B visa for employment that begins before October 1, 2015.

This is more than just a short-term problem.  With other forms of hiring picking up and unemployment steadily diminishing throughout the economy, the lottery is likely to once again become an annual institution, particularly as the “Gang of Eight” immigration reform legislation that would significantly increase the quota of available visas has stalled in the Congress.  As the “old normal” sets in in the immigration world, employers would be well advised to resume boom-era planning habits for H-1B hires.

The most important of these habits to begin work on petitions months ahead of time, reducing the chances that an unexpected delay or complication will keep an employer from submitting a petition before the unforgiving deadline.

Another viable strategy is to consider lateral candidates already employed in the United States on H-1B visas.  While such candidates may not have as much available H-1B time remaining as would a first-time visa beneficiary who manages to run the lottery gauntlet, they have the advantage of near-immediate availability.  This is because change of employer petitions are not subject to the annual caps, and therefore can be filed at any time of year, even in years in which the H-1B program is oversubscribed.

Last, for an employee who has recently completed studies in the United States and is employed under an F-1 visa “optional practical training” arrangement, the employer should consider submitting an H-1B visa petition on the April 1 immediately after the employee is hired, even if the employee has enough remaining OPT time to get to the opening of the next year’s H-1B visa season.  This allows the employer to participate in the H-1B lottery in more than one year, falling back on the OPT arrangement if the petition is not selected in the first year the employer submits it.  While this strategy costs more upfront for petition preparation, it can also reduce the chances that the employee will ultimately be left without an H-1B visa entirely.

In short, while the H-1B cap is likely to create frustrating hiring difficulties for the foreseeable future, there are steps those wishing to hire H-1B employees can take to mitigate cap-related problems, if they plan and consult counsel well in advance.

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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