The H-1B visa is the most frequently used temporary work visa by US companies for their professional foreign employees. An employer may file a H-1B visa petition to fill jobs requiring a Bachelor’s degree or higher in a particular specialty (e.g. fields in the science, technology, engineering, mathematics, education, business, health care industries). It’s now time to start preparing applications given the H-1B filing deadline and lottery system.
What is the deadline to file for H-1B visas?
Employers should immediately identify employees or potential employees who may need a H-1B visa. The United States Citizenship and Immigration Services (USCIS) begins accepting applications on April 1, 2014, but employers should start the application process by mid-February given the time it takes the Department of Labor to certify the Labor Condition Application (LCA) required at filing. Moreover, the demand for H-1B’s is likely to exceed the supply this year, so employers should plan to have H-1B petitions ready for April 1, 2014 delivery at USCIS. This projection is based on the numbers of H-1B visa applications submitted last year (approximately 124,000) compared to the numerical limitation (85,000 total), as well as the improving economy. As was the case last year, USCIS will likely need to use its H-1B lottery system to determine which applications will be selected for processing in five business days, beginning April 1st.
Significantly, not all H-1B applicants are subject to this deadline and numerical cap. These “cap-exempt” H-1B cases typically involve:
Institutions of higher education and related non-profits;
Certain government or non-profit research organizations; or
Employees who have held H-1B status within the last six years and remain eligible for extensions.
What is the H-1B Visa Lottery?
Currently, there is an annual cap of 65,000 regular H-1B visas plus an additional 20,000 H-1B visas reserved for applicants who have earned a Master’s degree or higher in the US. If the cap is reached on any of the first five business days beginning April 1st, USCIS will use a computer-generated random selection process on all applications received during the first five business days to determine whether a H-1B application will be accepted or rejected.
Applications that are accepted will receive a receipt notice from USCIS, indicating that the case was accepted in the lottery. If approved, the earliest start date in H-1B status would be October 1, 2014. Notably, some employees working on Optional Practical Training (OPT) work permits may qualify for extended employment authorization for any gap between their OPT expiration and the October 1st start date.
If, however, the H-1B petition is rejected in the lottery, the submission is returned with the filing fees. At that point, the employer and employee should consult with an experienced immigration attorney to evaluate any other viable options.
Are you or a company you work for planning to file for a H-1B visa?
If you are contemplating a H-1B filing, please contact the Atlanta immigration law attorneys at Antonini & Cohen today. Our attorneys can assess your circumstances and help file timely H-1B petitions and also review H-1B alternatives. To schedule a consultation today, call us at 404.850.9394 or complete a contact form here.