The clock starts ticking every day as that important date in immigration – April 1- approaches. 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 the regulations, employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, which makes April 1 the beginning of the race for obtaining an H-1B visa before the quota or “cap” is reached. While the economic slowdown has caused the cap not to be reached for several months, as opposed to the cap being reached within one day as it did in the past, it is still important to properly prepare for filing.
The H-1B Visa Lottery
USCIS first applied the random selection of H-1B petitions received on the “last day”- known as the “Lottery”- in 2005 for FY 2006 H-1B petitions. That year, USCIS had announced it had received enough H-1B petitions by August 10, 2005, which was announced as the final receipt date. All petitions received that day by USCIS were subject to a lottery. In 2006, the FY 2007 H-1B cap was reached on May 26, 2006 and a lottery was held for all petitions received on that day.
The next year goes down in the history books as the one where the FY 2008 H-1B cap count was reached in just one day. By the end of the first day, April 2, 2007 (April 1 was a Sunday), USCIS had received 150,000 cap-subject H-1B petitions! Petitions received on April 2nd and 3rd were subject to the legendary lottery.
In possibly a very early sign that the economy was heading for a slowdown, the cap was not reached until April 8, 2008 for the FY 2009 H-1B visa cap. By 2009, well on our way into the Great Recession, the FY 2010 H-1B cap was not reached until December 21, 2009. Subsequently, the FY 2011 H-1B cap count was reached on January 26, 2011 and the FY 2012 H-1B visa cap was reached on November 22, 2011. The sudden rise in H-1B filings in the final weeks of the FY 2012 H-1B cap race has been seen by many to be a possible sign of an improving economy.
The VisaPro H-1B Petition Timeline
While it is not expected that the USCIS H-1B cap for the next fiscal year will be met in one or two days as in the past, the cap is also not expected to remain open for 7 or 8 months either as the U.S. economy continues on its path to recovery. It is well worth your time to be prepared to submit the H-1B as soon as possible as the final receipt date for the USCIS H-1B cap is so unpredictable. By following our suggested H-1B 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 applicant list; Develop detailed job descriptions.|
|Early February:||Have the potential employee gather and request required transcripts and experience letters (if necessary) in order to obtain an Educational Evaluation if they have foreign degrees.|
|Early March:||Determine the prevailing wage and file the Labor Condition Application (LCA) with the DOL (see below); 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, 2012 or as soon afterwards as possible.|
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 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. On the other hand, if the individual had a cap-subject H-1B any time in the last six years, he does not have to go through the cap again.
In some instances, individuals who have been counted towards the cap in the past may choose to enter the cap again in order to obtain a new six years of H-1B. If a person has been outside the U.S. for one continuous year since being counted towards the cap and that person was counted towards the cap in the last six years, he or she has the option of going through the cap or having a cap-exempt H-1B petition filed on his or her behalf. This individual should discuss the pros and cons of each option with their Employer and VisaPro Attorney.
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 transcripts and experience letters, which are required to do a proper evaluation, may be difficult to obtain quickly.
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, the DOL is currently taking at least 7 calendar days to process LCAs. Also, the DOL is still denying LCAs when they cannot match the employer’s information with the information they have obtained from the IRS. It is imperative that employers plan ahead to avoid not being able to file because of the LCA.
It is also important to remember 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.
The F-1 Cap Gap
If the Employer is employing an individual who is on Optional Practical Training (OPT), it is imperative that the H-1B petition is filed before the OPT expires in order to ensure continuity of employment. USCIS has carved out a limited exception for F-1 students in filing H-1B Change of Status petitions. Regardless of the fact that a student’s F-1 status may expire before October 1, “Cap Gap” allows that student to remain in status as long as the H-1B petition is filed before the expiration of status. If the H-1B petition is filed before the OPT expires, USCIS has further said that that those students may continue working without a break in employment.
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 him for the next several years and needs to get him an H-1B. His current OPT ends in July. This company need to get a petition filed early (no later than when his OPT expires) so he can be assured of obtaining the approval in time for October 1 and take advantage of the Cap Gap rules (allowing F-1 students with valid OPT to continue working if the H-1B petition is filed before the expiration of the OPT).
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. Jorge’s H-1B was most likely exempt from the cap because he works for an institution of higher education. In order to switch his H-1B to a private entity, he must now file a “cap” H-1B. He will have to file early enough to be sure he can get an October 1 start date.
The competition for the coveted H-1B visas has been intensifying over the years. While we have seen a drop off in the use of H-1B visas during the economic downturn we anticipate an increase to previous levels in the near future. With this in mind, it is important that every company interested in sponsoring an H-1B worker plan ahead. By utilizing the VisaPro H-1B petition timeline, employers can 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. With the help of our H-1B visa timeline, 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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