Time to Prepare for H-1B Cap Filings
January 7th, 2015 by SRW Lawyers
The start of a new calendar year means that it is H-1B cap filing season once again. Each U.S. government fiscal year (October 1st to September 30th), new H-1B petitions are subject to an annual cap of 65,000 with an additional 20,000 allotted to U.S. advanced degree individuals.
Companies need to evaluate their anticipated hiring needs for H-1B professionals, specifically those requiring initial H-1B status. This is particularly true for any current employees working under Optional Practical Training (OPT). These H-1B cap cases will be filed on April 1, 2015 requesting a start date of October 1, 2015, so now is the time to start planning.
Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1st signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (Master’s or higher) from a U.S. university.
Last year’s H-1B cap was reached right away in April. In fact, USCIS received more filings than H-1B numbers available and a lottery was conducted. Therefore, some H-1B filings were unfortunately rejected under the lottery process.
The demand for new H-1B workers will likely again result in the new cap being reached right away in April this year. It is also very likely that the volume of filings will require another lottery process. President Obama’s executive action immigration reforms on November 21, 2014 did not increase the number of H-1B petitions that can be approved in a fiscal year and Congress has not acted to increase the number of H-1B petitions. We expect that demand will be extremely high again this year and that the H-1B numbers will be immediately exhausted.
*** As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap. ***
SRW recommends that clients keep us updated on all recent hires and current employees that may need H-1B status. Examples would include F-1 students hired with Optional Practical Training (OPT) or current L-1B nonimmigrants who will be maxing out their five years in that status.
Please contact us to plan for new H-1B petitions and with any questions on the H-1B cap as soon as possible.
