H-1B Cap: No, It Is Not Too Early

by Proskauer Rose LLP
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While it may seem early, it is a good time for employers to start preparing for the H-1B Cap for Fiscal Year 2015, which begins October 1, 2014. Demand for the H-1B has steadily increased, with last year's cap being reached in the first week of filing. Employers should expect this trend to continue and be prepared to file their H-1B petitions on the earliest possible date, April 1, 2014.

Background:

By way of background, the H-1B is a very significant visa category as it allows qualified professionals to enter the U.S. Only a limited number may be granted each fiscal year (which runs from October 1st through September 30th). Under current immigration law, only 65,000 new H-1B petitions may be granted each fiscal year with an additional 20,000 available for those individuals with advanced degrees from a U.S. academic institution.

Employers may file an H-1B Cap subject petition starting April 1st for a start date to commence on October 1st. Last year, demand vastly outpaced supply with the cap being reached during the first week of filing. As such, with more applications received than visas available, USCIS conducted a lottery of all the petitions received between April 1st and April 5th, 2013 to select those that would be reviewed and adjudicated. Before that, the last time the cap had been reached during the first week was in April 2008 for Fiscal Year 2009. The decreased demand after Fiscal Year 2009 was due to the effects of the financial crises. However, we have seen filings steadily increase over the last few years as the economy has improved, and we should plan for the cap once again to be reached in the first week of April.

Evaluating Your Potential H-1B Population:

Due to the increased demand for the H-1B, it is important that employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date. We outline below some of the types of employees to review when making decisions whether to file an H-1B petition.

  • F-1 Students: Students, particularly those on F visas and currently working for you pursuant to approved Optional Practical Training (OPT), should be the first group of employees to consider for filing an H-1B petition on April 1st. The reason for this is simple. If you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT (unless they are able to extend it in the limited circumstance described below).

Moreover, even when employees may extend their OPT, it is advised to file an H-1B for Fiscal Year 2015. This gives the employees two opportunities to obtain the H-1B. If more applications are filed than visas available and these employees do not obtain the H-1B this year, then the OPT extension may serve as a backup and you can file for the H-1B again next year.

  • L-1Bs: In recent years the L-1B visa category has faced increased scrutiny, particularly at the California Service Center. The L-1B is for intracompany transferees who are being relocated to the U.S. to serve in a specialized knowledge capacity after having been employed by the company abroad for one year in either a managerial or specialized knowledge role. The strict interpretation of what qualifies as specialized knowledge has resulted in denials of many L-1B petitions. Therefore, rather than file an L-1B extension, many employers are opting to file H-1Bs.

  • Certain Green Card Cases: Certain applicants for green cards may run out of authorized time in the U.S. unless they are in H-1B status. We recommend you consult with counsel on such cases.

What Do You Do If You Miss the Cap?

Even the most prepared employer can be faced with a situation where an employee misses the H-1B Cap. Whether it is because the petition is not selected in the lottery, or the cap is reached before you are able to file the petition, the question is what to do next. Under these circumstances we recommend you consult with counsel on your specific situation, but potential options to keep in mind are registering for E-Verify and reviewing other visa categories.

  • If Potential Applicants Are STEM (Science, Technology, Engineering, Mathematics) Graduates – Register for E-Verify: Certain F-1 STEM students may be eligible for a 17-month extension of their OPT if their employers are enrolled in E-Verify. E-Verify is an Internet-based government system that requires participating employers to enter the employee data from Form I-9 to be confirmed against the Department of Homeland Security and Social Security Administration records. The E-Verify program was tied to the 17-month OPT extension as a way of encouraging employers to register for E-Verify. However, employers should keep in mind that their enrollment in E-Verify is only one of the requirements for students to obtain this additional 17 months of OPT. In addition, the student must have a degree included in the STEM (science, technology, engineering, and mathematics) Designated Degree Program List, the student currently must be in an approved post-completion OPT period based on a designated STEM degree, and the student must apply for the extension before the current post-completion OPT expires.

  • Other Visa Categories: Where appropriate, companies may consider other short-term visa categories. However, it is important to note that such categories often have their own limitations and we recommend you consult with counsel on such cases.

We encourage employers to reach out to our Immigration & Nationality Group if they have questions. We will continue working with our clients to ensure that H-1B petitions are prepared and ready for filing by April 1st, and as long thereafter as we would be permitted to file.

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