Applying for H-1B petitions: The clock is ticking

Employers should ensure that their petitions are ready to be filed as soon as possible if they have not done so already

The 113th Congress is considering legislation that would make extensive revisions to nonimmigrant categories for professional specialty workers (H-1B visas). The “Border Security, Economic Opportunity, and Immigration Modernization Act,” or S.744, as passed by the Senate on June 27, 2013, would substantially revise the H-1B visa category by increasing the annual H-1B visa cap for highly skilled workers from 65,000 to 110,000 per year and by increasing the H1B cap for science, technology, engineering, and math (STEM) visas from 20,000 to 25,000 per year. In total, there would be 135,000 H-1B visas available the first year that the law is enacted. Because immigration reform legislation has not yet been passed, however, there are only 85,000 H-1B visas available for FY 2015.  

The H-1B visa program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. A “specialty occupation” is one that requires the application of a body of highly-specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. “Specialty occupations” include but are not limited to positions in biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts. The intent of the H-1B visa provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the U.S. 

In addition to the increase of available H-1B visas, the proposed legislation also contemplates protections for U.S. workers by modifying H-1B application requirements and procedures for investigating H-1B complaints. The legislation would amend the H-1B labor certification process to revise wage requirements based on Department of Labor (DOL) surveys, and would require employers to advertise for U.S. workers on a DOL website. The legislation also broadens the DOL’s authority to investigate alleged employer violations, would require the DOL to conduct annual compliance audits of certain employers, and would increase the DOL’s reporting requirements and information sharing between the DOL and the U.S. Citizenship and Immigration Services (USCIS).

Because Congress has not yet passed comprehensive immigration reform or legislation that reforms the H-1B visa program for FY 2015, there are only 85,000 H-1B visas available. USCIS began accepting H-1B visa applications for FY 2015 beginning on April 1, 2014. The H-1B visa cap remains in place until all of the available visas for the year’s quota have been filed and issued. While there is no fixed or set cut-off date for filing an H-1B visa application, it is important to remember that the cap is quickly reached as H1-B visas are issued on a first come, first serve basis. H-1B visas can be applied for and filed towards the cap numbers until the date that all available visas have been issued.

The time it takes for the cap to be reached varies from year to year. For example, for FY 2013, visas were available for approximately 10 weeks after the petition period opened, while for FY 2014, all available visas were issued within the first 7 days after the petition period opened through a “lottery” system. When USCIS receives more petitions than it can accept (as it did for FY 2014, when 124,000 petitions were submitted during the first week), USCIS uses a lottery system to randomly select the number of petitions required to reach the numerical limit. The first lottery is limited to those applicants who hold advanced degrees from U.S. institutions. If an advanced degree petition is not selected in the advanced degree lottery, it is included in the lottery for the regular quota. Prior to FY 2014, the lottery for the H1-B cap had last been used in April 2008 for FY 2009. Because the H-1B cap was reached during the first week of the filing period last year, it is again expected that USCIS will receive more petitions than it can accept for FY 2015 and will therefore again need to utilize the lottery system. Accordingly, employers should ensure that their petitions are ready to be filed as soon as possible if they have not done so already.

Contributing Author

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Tina M. Maiolo

A member of Carr Maloney, P.C., Tina Maiolo partners with clients to operate and grow their businesses. She focuses her legal practice in...

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