The clock starts ticking every day as that important date in immigration – April 1 comes closer. As many of you already know, April 1 marks the first day that USCIS accepts H-1B petitions for the federal government’s fiscal year beginning on October 1. As per regulations, employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, which makes April 1 beginning of the race for obtaining an H-1B visa before the cap is reached. While this has been much more important in the recent past, before the recent slowdown in the use of H-1Bs, it is still important to properly prepare for filing.
What Happened In The Past?
In 2008, USCIS received 150,000 applications for 65,000 H-1B slots in just two days after the filing period started on April 1.
In 2007, the H-1B cap was reached in just one day and USCIS conducted a lottery to randomly choose petitions for processing. In first two days, USCIS received 123,480 cap-subject H-1B petitions, amounting to nearly a double of the annual allotment of 65,000 visas. The U.S. Master’s cap that exempts the first 20,000 petitions on behalf of beneficiaries who obtained an advanced degree at a U.S. institution of higher learning was exhausted on April 30. This was merely a continuation of the pattern that has been occurring over the past several years, where each year the cap was reached earlier than the year before.
H-1B Application Timeline
Though it is not a guarantee that your petition will be selected for processing, if you follow this suggested timeline you will have maximized your efforts to ensure timely and successful filing of your H-1B petition.
|ASAP:||Identify your H-1B needs, discuss the strategy with your VisaPro immigration attorney and finalize the applicants list; Develop detailed job descriptions; Obtain prevailing wage determination.|
|Early February:||Obtain Educational Evaluation if your applicants have foreign degrees.|
|Early March:||File LCA with DOL; Begin gathering supporting documentation.|
|Mid March:||Prepare all H-1B forms, support letter and other required supporting documentation.|
|March 31:||Mail the petition to USCIS for delivery on April 1.|
It is late January and you have just had two potential clients come in to the office for consultations. Now you need to advise them on the filing procedures and timing so they can meet their objectives.
My Case Scenario
Jason is software engineer that is working on his OPT for a company that develops software to track goods throughout the supply chain process. His company wants to keep for the next several years and needs to get him an H-1B. His current OPT ends in July. They need to get a petition filed early so he can be assured of getting a visa and so that Jason can take advantage of the Cap Gap rules and continue working through the October 1 start date for an H-1B.
My Case Scenario
Jorge has a PhD in molecular biology and has been conducting research in a lab at a university in New York City while in H-1B status. He has just been offered a research position in a pharmaceutical development company that wants to build on his research and expertise. Jorge already has an H-1B so he doesn’t have to worry about the cap right? Not necessarily. It is most like that Jorge was not counted under the cap because he is working for a university and in a position that would be exempt. He will have to file early enough to be sure he can get an October 1 start date.
Tips For Employers In Implementing The H-1B Visa Timeline
Check to see if the individual you plan to hire is subject to the cap.
When looking to hire an individual who has already been in the H-1B status, it is important to determine whether this person has been previously counted towards the cap or not. For example, if you are hiring someone who has worked for a university and thus qualified for a cap-exemption, this person would have to be counted towards the cap now because they were not previously counted.
Obtain educational equivalency evaluations now.
For any person who graduated from a non-U.S. institution of higher learning, it is important to obtain a degree equivalency evaluation that will be submitted with the H-1B visa petition. Waiting until the last minute could mean that you will not be able to obtain the evaluation in a timely manner, because the degree evaluation services tend to be inundated with requests during this H-1B season.
File your Labor Condition Application (LCA) and start your public access file.
Before any employer can file an H-1B visa, they must first file a labor condition application with the U.S. Department of Labor. Don’t forget that on or within 30 days before the date of filing the LCA, the employer is responsible for posting the LCA form or a notice of the intent to obtain an H-1B at two conspicuous locations in the place of employment for at least 10 days. All records related to the LCA filing should be kept in a public access file.
Consider filing for more than one person for the same position.
One way to address the cap issue is to file an H-1B petition for more than one qualified person and improve your company’s chances of getting at least one approval. Based on what happened last year, it is fairly certain that USCIS will once again institute a lottery system to randomly choose petitions for processing. Last year about 1 in 2 petitions was chosen for processing, this year that ratio will likely be even worse and could be as high as 1 in 4. If you have identified more than one suitable candidate, it may be worth your investment to file for more persons than you had initially planned. It is wise to at least take this option into consideration when making your H-1B decisions.
The competition for the coveted H-1B visas has been intensifying over the years and now the situation is in a dire state. Filing early is no longer a guarantee of obtaining an H-1B visa, it is now a prerequisite for even being considered. With this in mind, it is important that every company interested in sponsoring an H-1B worker plan ahead and prepare to file the nonimmigrant visa petition in a timely manner.
VisaPro specializes in serving individual and corporate clients in various countries all across the world. We have successfully handled H-1B petitions for a variety of clients ranging from one-man start-up firms to multinational companies, from software engineers to market research analysts, fashion models, optometrists, medical technologists, organic farm managers, social workers, etc.
Contact VisaPro to receive assistance with your H-1B filing strategies for next fiscal year. Our experienced attorneys will be happy to assist you.
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