Tick Tock: The H-1B Visa Clock Is Ticking

more+
less-
more+
less-

The H-1B is the main visa used by U.S. employers to hire highly skilled, professional, foreign workers. Each year on October 1, approximately 65,000 H-1Bs are made available (with an additional 20,000 for foreign nationals with masters degrees or higher from a U.S. university), and once these visas are allocated, the H-1B window is closed until the following year. In 2013, all of the available H-1Bs were snapped up by employers during the first week of the filing period! In fact, employers filed applications for twice the available number of H-1Bs, leading to an H-1B lottery. Because even greater demand for H-1Bs exists in 2014, we suggest employers begin planning now for the coming H-1B filing season.

The Time Is Now

Employers are allowed to file H-1B applications starting six months prior to the start of the new H-1B year. This means the filing season for the next round of H-1Bs begins on April 1, 2014, and we predict all of the H-1Bs will be spoken for by April 4. Based on the extremely limited nature of the H-1B filing window, employers are advised to begin laying the groundwork now to maximize the opportunity to obtain one of the highly coveted H-1B slots.

Certain employers are exempt from the H-1B cap, including institutions of higher education, nonprofit organizations related to or affiliated with an institution of higher education, and nonprofit or governmental research organizations. There is no yearly limitation for non-exempt H-1Bs. In addition, the H-1B cap does not apply to foreign workers who have been granted H-1B status in the past six years and have already been counted against the cap. Employers are free to file for H-1Bs at any time for cap-exempt employees, which can be an attractive recruiting and staffing option for employers to consider.

Some H-1B Basics

A common misconception is that the H-1B is just for high-tech workers. While it is true that many technology employers employ foreign workers on H-1B visas, the H-1B is also available for positions in health care, engineering, business, and manufacturing among other industries. Generally, positions which require at least a bachelor's degree in a specialized area are suitable for H-1B sponsorship. As part of sponsoring an employee or potential employee for H-1B status, an employer must agree to certain conditions. Some of these conditions include:

  • The employer must offer the foreign worker the same employment benefits and working conditions as offered to other US employee;
  • The foreign worker must be paid a salary that is no less than earned by similarly situated US employees;
  • The employer cannot materially change the terms or conditions of an H-1B worker's employment without notifying U.S. Citizenship and Immigration Services.

The H-1B provides long-term work authorization to the foreign employee. An initial grant of H-1B status can be valid for up to three years, and the employer may extend the H-1B for an additional three year term. The H1-B can be an excellent way for employers to retain key talent for a lengthy period of time.

Topics:  Deadlines, H-1B, Immigrants, USCIS, Visas

Published In: Immigration Updates, Labor & Employment Updates

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.

© Polsinelli | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »