January 17, 2015
The United States Citizenship and Immigration Service (USCIS) will once again begin accepting petitions for H-1B working visas on April 1, 2015. Petitions may be submitted for employment to commence on or after October 1, 2015. It is imperative that interested applicants have their petition submitted to the CIS between April 1-7, 2015, or it will likely be too late.
As background, there are 65,000 H-1B visas available each fiscal year (October 1 to September 30), plus another 20,000 H-1B visas for those who have attained a US Master’s degree or higher. For fiscal years 2007 and 2008, the visa cap was reached on the very first day of filing on April 1.
To avoid the deluge of petitions, the USCIS altered the filing policy starting in fiscal year 2009. The policy, which continues to today, is that if more than 65,000 petitions are received within the first 5 business days starting on April 1, the USCIS will only accept petitions filed within the first 5 business days for consideration in a random lottery. Only those chosen in the lottery will be processed for a decision on the merits, while those not chosen in the lottery and those filed after the filing window will be rejected.
Due to the downturn in the US economy starting in fiscal year 2009, the USCIS did not need to resort to the lottery system and continued to accept H-1B petitions for many months after April 1. As the economy slowly improved, however, more H-1B petitions were being filed, with the visa cap being reached more quickly each year.
In fact, in 2013, so many petitions were received when the filing period began that the USCIS had to once again implement the lottery system. In 2013, the USCIS received about 124,000 H-1B visa petitions that were subjected to the lottery. In 2014, the USCIS received about 172,500 visa petitions.
It is therefore anticipated that the visa cap will once again be reached within the first 5 business days, which is April 1-7, 2015. The USCIS would consequently conduct another lottery for H-1B petitions. For this reason, interested applicants should proceed now with preparations for filing the H-1B visa petition.
To qualify for an H-1B visa, the petitioning company must be able to prove the following requirements: (1) the position that the immigrant will fill is a “specialty occupation”, and (2) the immigrant meets the requirements for the specialty occupation. In other words, the company must prove that the position offered is a professional position that mandates an individual with at least a bachelor’s degree or equivalent in a specific field, and that the individual sponsored has that particular type of bachelor’s degree or work experience equivalence.
The process to apply for an H-1B visa involves several steps before a petition can be submitted to the USCIS. An initial step in the process involves verification of the sponsor’s federal employer identification number (FEIN) with the Department of Labor (DOL), which can take a week or more.
Another pre-filing requirement is notification of the Labor Condition Application (LCA) that will be filed with the DOL. The notification must be provided to the union’s bargaining representative or, if none, by posting the notice of filing for 10 consecutive days or emailing it to certain required employees of the sponsoring company.
Once the FEIN has been verified, and the notice of filing the LCA has been conducted, the LCA must then be electronically filed with the DOL. The processing of the LCA typically takes about one week, but typically lengthens as April approaches. Only after the DOL has certified the LCA may the H-1B petition be filed with the USCIS. Sponsors need to proceed with these preliminary requirements now so that they are prepared to file the H-1B petition with the USCIS during the anticipated short filing period.
The H-1B visa allows the individual to work in the US for an initial period of up to 3 years. The H-1B visa can thereafter be extended for another 3 years, and then at either 1 year or 3 year intervals provided certain requirements are met. While working in the US as an H-1B visa holder, the individual can then undertake the steps necessary to obtain lawful permanent residency. Moreover, the spouse and unmarried children under age 21 are eligible to obtain an H-4 dependent visa in order to live in the US with the H-1B visa holder. The President’s recent executive action announcement also included a provision that will allow certain H-4 dependent spouses to obtain work authorization.
This opportunity is now happening during a very short period just once per year. So, those interested in obtaining an H-1B visa must ensure that they are diligent in timely preparing the petition.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists.