Getting Geared For The H-1B Cap Filing Season:

Tips To Succeed In The H1B Cap Challenge

Introduction

The H-1B visa is utilized by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields. As one of the primary requisites of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) requires U.S. employers to meet specific labor conditions. This is to ensure that American workers are not adversely impacted by the employment of a foreign worker and also that the DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workerss.

The current law has a quota of only 65,000 H-1B visas available each year. When the USCIS believes that it has received sufficient number of applications to reach the particular year’s cap, it stops accepting H-1B applications. It has been interesting to note how the numbers have just vanished over the past few years even before the start of the actual fiscal year for which the filings are done. For past few years, the cap has been reached within days of the filing seasoning being opened!.

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Lack of proper planning and on-time filing for an employee before the cap is reached can result in you having to wait 1 year before the petition can be filed again and 18 months before your candidate can begin working on H-1B. In such cases employers will be left with the option to evaluate and utilize alternatives to the H-1B category.

Petitions filed on behalf of current H-1B workers do not count towards the congressionally mandated H-1B cap. The purpose of the petition could be extension of stay, change in the terms of current employment, change of employers by current H-1B workers and H-1B workers seeking to work concurrently in a second H-1B position.

Unless there is a change in law, USCIS also allocates 20,000 cap exemptions annually for persons with advanced U.S. degrees. Additionally, those seeking jobs in institutions of higher education or related or affiliated non-profit entities, or at non-profit research organizations or governmental research organizations are completely exempt from the H-1B Cap. H-1B cap exemptions depend on an employer fitting within a particular category and fulfilling the requisites set forth under the law. An employer isn’t required to apply for the exemption with the USCIS or any other government agency.


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Large sized companies: The larger companies processing 50 to100 H-1Bs every year are looking towards having a better strategy planned up this year as a precautionary measure to surpass the rejections for their petitions last year. The companies plan to start all their paper work by February in order to make sure to post the petition to the USCIS well before time. The plan is outlined in such a manner that the petition gets filed on 1st of April. The companies see an absolute need to ascertain their staffing requirements and plan the filing of H-1B petitions for employees who they need to employ during the next fiscal year. Most have sought assistance from experienced attorneys or law firms to ensure they don’t miss the H-1B bandwagon yet again!

Medium sized companies: The medium sized companies process nearly 10 to15 H-1B visas every year. Ineffective planning and late filing was the prime cause for these companies not receiving the required H-1B visas. Many of the companies filed the petitions in 1st week of June and hence, lost out on the H-1Bs. We were made to understand by them that this year their strategy would be better and much more efficient. The companies plan to start preparing for the H-1B visas and also seek help from law firms, if necessary, in understanding the document requisites and visa procedure.

With the H-1B issues involved, one does need to plan for the next fiscal year in advance. There are several potential immigration strategies to survive the H-1B cap and one of them is filing as soon as the quota opens. Employers need to devise a suitable strategy for hiring a foreign national in advance and plan the filing accordingly. This may still not be a solution when the need of a foreign national in the U.S. is immediate and emergent. For more details on alternative visa options for those who might still be left out this year, please review our Immigration Article on H-1B Cap.

VisaPro has successfully handled H-1B petitions for a variety of clients ranging from small companies to multinational firms during the last 16+ years. Please feel free to contact us to discuss the immigration needs of your organization and help you effectively with the H-1B visa application process.

Our experienced Immigration Attorneys will help you devise an appropriate strategy for employing foreign nationals or transferring employees from your overseas offices to your U.S. entity.


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