Navigating the H-1B Cap Season

On April 1, 2014, the United States Citizenship and Immigration Services (USCIS) will begin the process of granting the coveted H-1B classification for the next fiscal year. The H-1B classification is one of the primary methods used by employers to obtain work authorization for foreign nationals in the United States, and is generally available for jobs that utilize a specialized body of knowledge and where foreign nationals possess a degree (or its equivalent) in a related field. However, the filing of an H-1B petition is preceded by a complex, multi-stage process fraught with potential pitfalls. U.S. employers looking to obtain work authorization for professionals who are not U.S. workers should thus act now to ensure their best chance of success.

A total of 85,000 H-1B visas are available each year (of which 20,000 are reserved for holders of U.S. Master’s degrees) – a number commonly referred to as the H-1B visa “cap.” In recent years, the H-1B filing process has been complicated by the fact that the number of petitions submitted has far exceeded the H-1B cap. Most recently, in 2013, 124,000 petitions were filed for the 85,000 available visas, and similar numbers are expected this year.

Some examples of individuals who may merit consideration for a cap-subject H-1B filing include those who are currently in practical training student status, as well as prospective employees who are currently abroad and do not qualify for another visa (such as the intra-company transferee visa). Individuals who already hold H-1B classification (even for a different employer) and workers at institutes of higher education are NOT subject to the H-1B cap.

If the number of H-1B petitions received within the first week of April exceeds the number of available visa numbers under the H-1B cap (as is very likely), all filed petitions will be entered into a random computerized lottery by the USCIS to determine which of them will be considered for review. All cap-subject H-1B filings must therefore be submitted during the first 5 business days of April 2014 to ensure the best chance of success. While it is never possible to guarantee that a petition will be accepted under the lottery, a timely filing will allow you to make sure that you do everything possible to secure a cap number for your employees.

The path to an H-1B visa can be filled with challenges, and strong legal advice is absolutely critical in successfully navigating the process. The legal team at Green and Spiegel has handled hundreds of H-1B cases over many years and will ensure that your petition has the highest likelihood of success. Please contact Green and Spiegel, LLP if you would like to discuss the attainment of H-1B classification for any of your employees.