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The Upcoming H-1B Cap Season: Planning Ahead Is Key




by:
Fragomen Del Rey Bernsen Loewy LLP - New York Office

 
December 9, 2013

Previously published on December 4, 2013

The FY 2015 cap season will begin on Tuesday, April 1, 2014. Though the opening day of the filing period is still several months away, it is not too early for employers to begin assessing their H-1B needs and filing labor condition applications (LCAs) with the Labor Department.

Advance LCA preparation is particularly critical this cap season. There is expected to be a heavy volume of LCA filings in the first quarter of 2014, which could cause processing slowdowns at the Labor Department. In addition, another federal government shutdown could occur in mid-January, which would suspend LCA processing during the height of the busy cap preparation period.

Obtaining LCAs early will help your organization avoid delays and ensure readiness to file H-1B cap cases when the season opens. Early filing can also help your organization meet its non-cap H-1B needs, including location changes for current H-1B employees.

Pros and Cons of Early LCA Filing

Employers should be aware that filing LCAs well before April 1, 2014, will result in a shorter initial period of employment for new H-1B beneficiaries and will require earlier extension filings. However, these administrative burdens are outweighed by the advantage of having an LCA in hand well before the cap filing season and in the event of another federal shutdown.

Although the maximum validity period is three years for both H-1B petitions and LCAs, the H-1B petition must be covered by an LCA that is valid for the entire period of employment. Because LCAs may not be filed more than six months before the requested employment start date, the H-1B validity period will be truncated when the LCA is filed early.

For example, an LCA filed on December 31, 2013, can request an employment start date no later than May 31, 2014. If certified, the LCA will be valid through May 30, 2017. An FY 2015 H-1B cap petition supported by the LCA will be filed on April 1, 2014, with an employment start date of October 1, 2014. The employer can request a petition validity period only through May 30, 2017, the expiration date of the supporting LCA. This would result in an initial period of stay of two years and eight months - four months less than the three-year maximum initial period of stay permitted under the regulations.

Multislot LCAs

If your organization anticipates a genuine need for more than one H-1B worker in an occupation at a specific worksite, consider filing a multislot LCA.

A single LCA can be sought to cover multiple employees in an occupation. These multislot LCAs give employers greater flexibility to respond to time-sensitive H-1B needs, such as the relocation of H-1B employees to new worksites and the onboarding of new hires porting from H-1B employment with another organization. Seeking multislot LCAs now can also help your organization avoid H-1B delays in the event of another federal shutdown early next year.



 

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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