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Author, Reger Rizzo & Darnall Client Alert. (January 2016)

On October 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will release its new allocation of H-1B nonimmigrant visa numbers for the Fiscal Year 2017. The first day to file these petitions is April 1, 2016.  Although April 1st may seem a long time away, employers and potential H-1B employees should prepare in advance to be ready for the deadline.

What are H-1Bs?

H-1Bs are nonimmigrant visas granted to foreign persons who desire to come to the United States to work in specialty occupations. A specialty occupation means the position requires a minimum educational level of a Bachelor’s degree or its equivalent, and the applicant has a Bachelor’s degree or equivalent in that field.  The attainment of a Bachelor’s degree or its equivalent must be necessary to fulfill the position’s occupational responsibilities.  USCIS allows for 65,000 H-1B visas each year with an additional 20,000 visas for those that have earned a U.S. Master’s degree. The Master’s degree must be earned in the U.S. in order to qualify for the Master’s cap.  Institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt and therefore not subject to these allotted numbers (INA§214(g)(5)(A) &(B). If a foreign national is selected for the H-1B cap and their application is approved, H-1B status will begin on October 1, 2016, and most likely their status will continue for three years, with the ability to apply for an additional three-year extension. 

A potential H-1B employee must be paid the higher of the prevailing wage for the metropolitan statistical area or the actual wage paid by the company to similarly situated employees as certified by the U.S. Department of Labor.  H-1B employees can be in any industry where the occupation meets the definition of a specialty occupation. 

What’s the Rush?

The first day to file an H-1B petition is April 1st and not a day earlier.  USCIS usually allows five days for their offices to receive the applications. If they receive more applications than the number of visas allotted, then a random lottery will be held. In most years, they receive more than the allotted number of visas. Last year, USCIS received 230,000 applications for the 85,000 visas allotted. There are also many documents that are needed. If you plan in advance, you can avoid certain issues as well as possible delays. Additionally, other visa options can be explored so that the foreign national has options if they are not selected for the H-1B lottery. 

What if you are not picked for the lottery?

There may be other visa options available if the individual is not selected for the H-1B lottery.  It is important to discuss visa options with an immigration attorney.  In addition, it is important to plan in advance so that the employer and potential H-1B employee have backup options.  It is predicted that the cap will be met again this year, and another lottery will occur. Being well prepared for H-1B season, as well as working with an experienced legal representative can make a difference.