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 firstname.lastname@example.org or Samuel Miller at email@example.com