No Time to Wait: Understanding the H-1B Numerical Cap and Timelines for Filing an H-1B Petition

By John C. Valdez, Esquire

I am writing this article at the beginning of the year, also known to immigration attorneys as "H-1B Season." This "Season" is characterized by a mad scramble by employers to qualify talented foreign nationals for the cherished H-1B visa. The first day to file an H-1B petition for the upcoming fiscal year is April 1st, and there will be a flood of filings on that date.

There are a number of reasons why employers use the H-1B category to hire workers, but the most obvious reason is that employers face a shortage of workers in certain occupations. This shortage is the basis for having an H-1B category, which is reserved for foreign workers needed in a specialty occupation position. A specialty occupation job is a position that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor's or higher degree (or its equivalent) as a minimum for entry into the occupation. Fully explaining the definition of a specialty occupation is beyond the scope of this article, but generally, the types of professionals that qualify for H-1B visas are highly skilled workers, such as engineers, scientists, lawyers, teachers, computer specialists, accountants, architects, economists, market researchers, executives, and financial analysts. Employers may seek out these foreign nationals because they simply have not been able to find enough U.S. citizens to meet their labor demands.

Although there is a great demand for H-1B employees, Congress has not allotted sufficient visas to accommodate this demand. The annual numerical limitation on H-1B visas is 65,000, plus an additional 20,000 available for workers with a U.S. master's degree. The application process for H-1B visas begins on April 1st, six months before the worker can begin employment on October 1st (the first day of the next fiscal year). Unfortunately, the number of available H-1B visas is regularly exhausted in the first week of April. In fiscal year 2015, the United States Citizenship and Immigration Services ("USCIS") received more than 172,000 H-1B visa petitions in the first week of April 2014, which means that after that week no more H-1B visas were available for the remainder of the fiscal year and the USCIS returned approximately 87,000 petitions to employers without a decision. It is possible that even more petitions will be filed for fiscal year 2016.

Employers wishing to obtain an H-1B number under the numerical cap need to plan in advance. April 1st should be the target date to file an H-1B petition, and the preparation of the petition can take anywhere from 2 to 6 weeks, depending on the circumstances.

There are cases that are not subject to the H-1B cap. For example, petitions are exempt from the cap if the worker will be employed at certain defined institutions of higher education, nonprofit entities related to or affiliated with certain institutions of higher education, or some nonprofit research organizations or governmental research organizations. Petitions for an extension of H-1B status, a change of H-1B employer, or an amendment of the terms of H-1B employment are also not subject to the H-1B cap. There are a few other instances where an applicant is not subject to the H-1B cap, but most new H-1B petitions fall under the numerical limitations.

There are many visa categories available for hiring a highly qualified professional worker, but one of the best is the H-1B visa. In order to procure one of these visas it is imperative that the employer understand the timelines involved and seek out legal advice as early as possible.

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