Preparing for the 2014 H-1B Season and the April 1 Filing Date

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Employers who wish to employ workers in the H-1B “specialty occupation” category starting on October 1, 2014, cannot file those applications earlier than six months in advance, or prior to April 1, 2014.  The government has established an annual quota of 65,000 visas for individuals in the general H-1B category and 20,000 for individuals who possess master’s degrees from U.S. universities.  Last year, the USCIS reached the quota for both the general and advanced degree H-1B categories on April 1, 2013 and had to conduct a lottery to determine which eligible applicants would be granted H-1B status. 

As the economy has improved since the recession, it is very likely that more businesses will be hiring new employees this year, including foreign-born workers, and thus the demand for H-1Bs will be higher than it has been in previous years.  Therefore, it is likely that the quota will once again be reached by April 1, 2014 for workers who wish to begin employment on October 1, 2014.

Notably, there are a number of applicants who may be cap-exempt and thus not subject to the annual quota:

  1. Workers who are currently in H-1B status and applying for extension(s) of stay, moving to another job or amending their previously approved employment;
  2. H-1B workers who are applying to work in a second H-1B position, concurrently with an already-approved H-1B position.
  3. Workers employed by a non-profit organization affiliated with an institution of higher education, a non-profit research organization, or a governmental research organization.
  4. There may be other strategies to avoid becoming subject to the cap, such as employment with a cap-exempt entity concurrently with a non-cap-exempt entity.

It is crucial to contact experienced immigration counsel far in advance of April 1, 2014 for help with properly filing H-1B petitions subject to the cap.  If an H-1B is not properly filed, it will be rejected and it may be impossible to re-file before the quota is reached as it takes several weeks for rejected filings to be returned.  Notably, the employer must obtain a certified Labor Condition Application (“LCA”) from the Department of Labor before an H-1B petition can be properly filed.