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Start preparing now to file H-1B employee visa petitions

9 Mar

On April 1, U.S. Citizenship & Immigration Services (USCIS) will begin accepting new H-1B petitions from foreign nationals to fill “specialty occupation” positions. USCIS typically receives far more than 85,000 H-1B petitions during the first five business days of April. During the first five days of filing in 2015, USCIS received 233,000 H-1B petitions.

Because the window for filing new H-1B petitions is so short, it is critical for employers to start the process now.

The first step is to identify potential H-1B candidates, starting with a review of the employer’s current workforce. Prime candidates include foreign students who are recent university graduates and temporary work visa holders (with type E, TN or L visas) that the company wants to retain on a long-term basis.

H-1B candidates must possess a U.S. bachelor’s degree or foreign degree equivalent in a field that is related to the H-1B position. In some cases, work experience may be used to meet the bachelor’s degree requirement. Even if temporary workers have remaining work authorization, it can often take years for an H-1B petition to be selected in the annual lottery system. Applying early can increase the chances for ultimate selection and minimize the potential for gaps in employment authorization.

Once H-1B candidates are selected, the second step is to work with immigration counsel to prepare the relevant documents, including a required Labor Condition Application for each H-1B candidate. The employer must post notice that it intends to employ an H-1B worker at the job site, and it must attest to the working conditions of the H-1B worker and confirm it will pay the required wage. The U.S. Department of Labor takes up to seven business days to certify an application. Accordingly, employers must plan ahead in order to obtain certification in time for an April 1 filing.

Below are a few other tips to ensure employers remain ahead of the H-1B filing curve:

  • Specialty occupations typically require at least a U.S. bachelor’s degree or its equivalent in a specific degree field or specialty.
  • Congress limits the number of H-1B visas that can be awarded each year to 85,000, which includes 20,000 set aside for graduates of U.S. master’s degree or Ph.D. programs.

  • Because the annual quota will likely be met in the first week of filing, by regulation, there will be a five-day filing window that will close on Thursday, April 7. Once the window closes, employers will not be able to file new H-1B petitions until April 1, 2017.

  • USCIS uses a random, computer-generated lottery system to select the 85,000 H-1B petitions. Petitions not selected in the lottery are returned to the employer with the possibility of filing again next year.

Lastly, employers should file H-1B petitions no sooner than March 31 for receipt at USCIS on April 1. Not all H-1B petitions selected in the lottery will be approved. Therefore, companies should seek early assistance from immigration counsel in order to prepare H-1B petitions that meet all regulatory requirements.

With the filing deadline rapidly approaching, it’s time to get ready, get set and file!

Stephanie Paver is senior attorney in the Austin office of immigration law firm Foster LLP.