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With college football season just ended, it may seem premature to be talking about "March Madness," but it isn't – at least, not if you have H-1B petitions for Fiscal Year 2015. Starting April 1, 2014, the U.S. Citizenship and Immigration Service will begin accepting H-1B petition filings – subject to the cap – for the next fiscal year, which begins October 1, 2014. We strongly recommend that H-1B petitions that are subject to the cap be filed as close to April 1 as possible because we expect the cap to be exhausted in the first week of April.
To be able to file on or as soon as possible after April 1, employers will need to begin preparations now.
There is an annual limit on the number of H-1B visas that can be issued each fiscal year to persons subject to the H-1B cap (primarily first-time H-1B beneficiaries) – approximately 65,000 in the general category and 20,000 limited to persons with U.S. master's or more-advanced degrees. In 2013, both caps were exceeded in the first week of April (a total of 124,000 petitions were received that week), and the USCIS had to conduct a lottery to determine which petitions would be considered. Petitions filed after the first week in April were not even included in the lottery.
As the economy improves, there is little doubt that the cap will exceeded in the first week of April 2014 as well.
Exceptions to the H-1B cap
The H-1B cap does not apply to the following:
• Persons who are or who have been in H-1B status within the last six years;
• Petitions for exempt organizations – institutions of higher education, or a related or affiliated non-profit entity, non-profit research organization or governmental research organization; or
• J-1 non-immigrant physicians who are changing status to H-1B and who have obtained waivers of the two-year return home residency requirement through the Conrad 30 Program (the physician agrees to work in a medically-underserved area).
Alternatives to the H-1B
If the H-1B option is not available, employers may want to consider these alternatives:
• As a prelude to filing for H-1B, optional practical training for foreign graduates of U.S. colleges and universities who may be eligible for a year of employment (or up to 29 months for students in Science, Technology, Engineering and Math fields) after USCIS approval of an individual's Application for Employment Authorization.
• TN visas under the North American Free Trade Agreement for Canadian and Mexican professionals.
• L-1 visa for intracompany transferees. If an employer has foreign operations (or decides to create them), this visa permits employees to transfer to the U.S.-affiliated company in a similar position if they have worked abroad for the foreign parent, subsidiary or affiliate continuously for at least one year within the preceding three years as an executive, manager or in a specialized knowledge capacity.
• E visa classification for treaty traders and investors if the L-1 visa is not available.
• J-1 exchange visitor classification for business trainees, scholars and others.
• O-1 visas for individuals with extraordinary ability. Although the standards vary somewhat depending on the type of employment, generally speaking, the O-1 visa applies to those recognized as being at the top or near the top of their field of endeavor.
If you have any questions, please contact any member of Constangy's Immigration Law Practice Group, or the Constangy attorney of your choice. In order for us to be able to assist you with filing your H-1B petitions at the beginning of April, we ask you to get in touch with us by February 15.
About Constangy, Brooks & Smith,
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.