News

Published 1.8.2018

A new year means a new H-1B season. The U.S. Department of Homeland Security, Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 2nd for new H-1B classifications subject to the annual H-1B cap. As has been the case in recent years, we expect that USCIS will receive enough applications to run out of H-1B visas as soon as the filing period opens. As of the information currently available, USCIS will again run the lottery system in order to select the “winning” H-1B petitions that will be considered on the merits.

Businesses seeking to employ a foreign national in H-1B status should start preparing the petition as soon as possible. Although USCIS begins accepting petitions on April 2nd, there are other steps that must be done in advance, including a separate application with the U.S. Department of Labor. Therefore, careful planning and preparation are a must, in order to ensure that the H-1B petition is ready to be submitted to USCIS in a timely manner.

Is H-1B right for you?
H1-B is a non-immigrant visa classification used for individuals who seek employment in the U.S. in a specialty occupation or as a fashion model of distinguished merit and ability. To qualify as a specialty occupation, the intended job must require at least a bachelor’s degree or its equivalent, along with the theoretical and practical application of a body of specialized knowledge. Examples of specialty occupations include jobs in IT and computer science, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting law, theology, and the arts, among others.

In addition, an employer cannot use H-1B workers in a way that would negatively affect the wage or working conditions of U.S. workers employed in the same or a similar occupation. Therefore, an employer must pay the H-1B worker a wage that is at least equal to the prevailing wage rate established for that type of occupation in the applicable geographical area.

Timing of the H-1B petition.
Under current law, there are 65,000 H-1B visas available each year to individuals holding a bachelor degree or equivalent. An additional 20,000 H-1B visas are available to individuals who obtained a Master or Ph.D. degree from a U.S. university.

In recent years, USCIS reached the H-1B cap within the first week after the filing period started each April. Last year, USCIS received approximately 199,000 petitions. The year before they received over 236,000 petitions and, the year before that, nearly 233,000 such petitions. Consequently, USCIS subjected the petitions it received to a random, computer-generated selection process equivalent to a lottery. It is anticipated that this year will see the same trend.

Not all H-1B petitions are subject to the numerical cap.
Individuals who already have H-1B status and who are seeking to extend or amend their existing status, or transfer to a new employer, are not counted against the cap unless they have already spent six years in H-1B status. In addition, H-1B petitions filed by an employer that is an institution of higher education, a nonprofit entity related or affiliated with an institution of higher education, a nonprofit research organization or government research organization, among others, are also generally not counted against the cap. H-1B petitions for individuals with a pending permanent residence case are, in some case, also not counted against the cap.

How soon should you start preparing an H-1B petition?
Many of the documents needed in support of the H-1B petition are easily accessible, such as corporate records for the petitioning employer. However, there are other documents that must be obtained from third-party agencies. All of these steps take time and proper coordination, in order to ensure that all requisite pre-approvals are secured, and all documents assembled in time for USCIS to receive a complete application package as soon as the filing period opens on April 2nd. Therefore, we recommend that interested employers and the intended H-1B employee(s) start preparing these documents right away.

If you are seeking H-1B clarification for the upcoming fiscal year, contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291.