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Filing Season Opens April 1 For Quota-Subject H-1B Visas




by:
Harter Secrest Emery LLP - Rochester Office

 
March 6, 2014

Previously published on February 10, 2014

FILING SEASON OPENS APRIL 1 FOR QUOTA-SUBJECT H-1B VISAS: Essential to file quota-subject H-1B petitions by April 1 for employment on or after October 1, 2014

Many U.S. employers hire foreign nationals to work in the United States in H-1B visa status, especially recent college graduates or others coming from abroad to work in the U.S. Approximately 65,000 new H-1B visas become available each federal fiscal year, which begins on October 1 and ends the following September 30. An additional quota of 20,000 new H-1B visas are available for those who obtained a Master’s degree or higher in the U.S.

April 1, 2014 is the first date on which H-1B petitions will be accepted by the United States Citizenship and Immigration Services (USCIS) for the upcoming fiscal year quota. Current trends indicate that all 85,000 spaces may be exhausted in the first week of April 2014.

Therefore, U.S. employers should immediately assess whether any current or prospective employees require H-1B status and, if so, whether they are subject to the quota. Companies should prepare H-1B petitions to be received by the USCIS on “opening day,” i.e., April 1, 2014. Failure to promptly identify affected individuals and to take the necessary steps to secure their work authorization under H-1B status may preclude or delay the employment or hiring of professionals in specialty occupations through October 1, 2015.

Not all individuals are subject to the quota. For example, many H-1B employees already employed by U.S. companies have already been counted against the quota and will not need to be counted again.

Prospective or current employees subject to the H-1B quota may include:

  • Current foreign students or recent graduates working under authorized Optional Practical Training.
  • Foreign nationals in or outside the U.S. who are not already employed in H-1B status by a for-profit employer.
  • Current H-1B employees at universities who seek new employment by for-profit companies.

When the USCIS receives more quota-subject H-1B applications than available spaces in the first few days of the filing period (estimated this year to be April 1, 2014 - April 4, 2014), a lottery may be conducted. Therefore, filing the H-1B on the first day possible does not guarantee a place in the quota even though legal costs will have been incurred. (However, government filing fees are returned for cases that are not ultimately accepted due to the quota limitations.)

We urge immediate action, as H-1B petitions require advance certification by the U.S. Department of Labor, which adds to preparation times. Please contact our office to review potentially affected foreign nationals and your company’s hiring needs for the upcoming 18 months.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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