Thursday, January 28, 2016

Plan Now for the New H-1B Filing Season

The Miller Law Offices provides guidance for employers in advance of the April 1, 2016 initial filing date for H-1B petitions.

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs.  The first date that H-1B petitions will be accepted by U.S. Citizenship and Immigration Services (USCIS) is April 1, 2016, for a starting employment date of October 1, 2016.

There is a statutory cap of 65,000 H-1B visas available each fiscal year.  An additional 20,000 H-1B visas are available under the advanced degree exemption (also known as the master’s cap) to nonimmigrant foreign workers who possess a U.S. master’s (or higher) degree.

Last year, USCIS received more than 230,000 H-1B petitions during the first five days of the filing period.  Because demand exceeded both the statutory cap and the master’s cap, a computer-generated random lottery was used to select petitions.

It is very likely that this year’s demand will be high again.  Furthermore, the H-1B petitioning process is complicated and labor-intensive, requiring both a labor condition attestation from the Department of Labor and a proper filing with USCIS.  An experienced immigration attorney is crucial to navigating this process. Your company should also consider the following: 
  • Because the H-1B process is time-sensitive and the required documentation may not be immediately available, it is important to begin preparations well in advance of the April 1 initial filing date.
  • Nonimmigrant foreign workers who possess a U.S. master’s (or higher) degree have two opportunities to be selected for an H-1B visa in a given year.  First, they may be one of the 20,000 selected under the advanced degree exemption.  If not, they are then placed in the general lottery for 65,000 visas.
  • Nonimmigrant foreign workers may be eligible for other classifications, either as a fallback if they are not selected in the lottery or as an alternative to seeking H-1B classification.  For instance:

o   Certain foreign-educated persons with foreign work experience may qualify for up to 18 months of employment in training programs through J-1 sponsorship.
o   Certain Canadian and Mexican professionals may be eligible for TN status.
o   Australian professionals are eligible for E-3 visa status, and their dependent spouses are eligible to apply for employment authorization.
o   Professionals from Chile and Singapore have separate H-1B1 caps which are likely to remain open.

  • Aliens of extraordinary ability may be eligible for O-1 classification, a non-cap alternative for persons who have reached the highest level of accomplishment in their field.
  • Qualified institutions of higher education or research non-profit organizations are exempt from the caps described above and can sponsor an H-1B visa at any time of the year.  This exemption also extends to employers that are related to or affiliated with these institutions or organizations.

For further information about the H-1B filing season or about the Miller Law Offices and our legal services, please contact us at (818) 508-9005 or direct your email to Charles Miller at or Samuel Miller at