It is again the time for U.S. employers to begin considering filing H-1B petitions for prospective new foreign national employees. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2016 for employment beginning no earlier than Oct. 1, 2016, the beginning of the government’s 2017 fiscal year. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required, such as engineers, teachers, accountants, and many professional information technology positions.. The problem is that there are only 85,000 H-1B visas available each year and we again expect, as in years past, for these numbers to be quickly claimed.
There is a limit, or “cap,” of 85,000 H-1B visas available each year: 65,000 for bachelor degree-level candidates and 20,000 for advanced degree graduates of American universities. However, we anticipate that the available H-1B visa numbers will again be exhausted within the first week employers are eligible to file new H-1B petitions. When this occurs, USCIS will conduct a computer-generated lottery to select which petitions will be accepted for adjudication. If a petition is accepted and approved, the foreign national employee will be eligible to receive an H-1B visa number and begin, or continue, working for his or her petitioning employer.
The limit of 85,000 H-1B visas is specific for potential employees initially seeking to acquire H-1B visa or status, and does not impact current H-1B employees. Accordingly, cap-subject individuals include those acquiring the H-1B visa or status for the first time, such as foreign (F-1) students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa.
Therefore, for employers and H-1B candidates who failed to get a visa number last year or who are waiting to apply this year, we advise them to be proactive and move quickly to ensure their H-1B petitions are prepared and ready to file no later than April 1, 2016.
Once the H-1B cap has been reached, no new petitions may be filed until the next fiscal year—April 1, 2017 for employment beginning Oct. 1, 2017. This can make both hiring and planning an employment start date difficult. Although employers can file petitions up to six months in advance of the requested effective date—which makes the April 1 filing date so critical—the approved petition will not be valid until October 1. Thus, even though employers may file petitions on or after April 1 for the next fiscal year, the petition will not be effective until October 1.
Additionally, the H-1B cap particularly impacts F-1 students who have post-graduate work authorization—or Optional Practical Training (OPT). Generally, OPT is valid for 12 months, and in certain cases can be extended an additional 17 months for students who completed a U.S. science, technology, engineering or math (STEM) degree from a U.S. university. OPT also allows former students to remain in the U.S. and work while awaiting the filing or approval of an H-1B petition. Often these individuals’ OPT will expire before an anticipated October 1 start date, leaving them unauthorized to continue working. Fortunately, there is a “cap gap” remedy for foreign national employees who have an H-1B petition filed on their behalf. If, for example, an individual’s OPT expires on June 30, 2016, but this person has an H-1B petition filed before the expiry of their OPT and accepted by USCIS, then their work authorization is automatically extended to September 30. This allows the foreign national employee to continue working until the requested start date of the H-1B petition, or until the petition is denied or withdrawn. However, recent proposed revisions to this rule would extend STEM OPT to 24 months, for a total of 36 months of OPT; but presently this change is uncertain. In August 2015, the U.S. District Court for the District of Columbia vacated the existing STEM OPT rule, and currently the Department of Homeland has a Feb. 12, 2016 deadline to publish a new rule. At this point, we’re uncertain when or if the new rule will be effective.
Finally, in limited situations, other employment visa categories may be available for foreign workers in lieu of the H-1B. For example, Canadian or Mexican nationals may qualify for Trade Nafta (TN) status, which is available for professional engineers, accountants, scientists, lawyers, pharmacists and teachers; who have U.S. job offers and meet qualifying criteria such as having a degree, professional license or experience. The TN category does not have a numbers cap nor does it have a limit on the amount of time the worker can remain in the U.S. Australian professionals are eligible for E-3 visa status if they will work in a specialty occupation and have completed a bachelor’s degree or its equivalent, just like the H-1B category. Also, Singaporean and Chilean citizens are eligible for H-1B1 status, again if they will work in a specialty occupation and have completed a bachelor’s degree or its equivalent. In this category, 1,400 H-1B1 visas are available annually for Chileans, while 5,400 are reserved for Singaporean nationals.
For those H-1B cap-subject individuals, such as those currently abroad or who do not have valid OPT or H-1B status, they must first hope their H-1B petitions are accepted and approved by USCIS and then wait until October 1 before commencing employment. If you have any questions regarding the H-1B visa category or any of the issues discussed above, please contact one of our immigration attorneys, including Rob Cohen, Catherine Kang or James Jensen.