March 17, 2014

Beat the H-1B Visa Cap By Filing On April 1, 2014

By Roger Tsai 

The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications on Tuesday, April 1, 2014 and it is expected that USCIS will receive more than 140,000 petitions for the 85,000 available H-1B visas.  

H-1B Visa Cap Likely to be Reached in First Week 

The number of available new H-1B visas is limited to 65,000 bachelor degreed positions and 20,000 advanced degree positions.  This applies to an immigrant employee who will fill a specialty occupation in the U.S., which is defined as any position with the minimum requirement of a Bachelors degree in a specific major or the equivalent experience.  For example, H-1B specialty occupations include a wide range of high-tech, medical and managerial professionals (i.e., operations engineers, engineering managers, or accountants). The USCIS will accept three-years of experience for each year of education omitted.  If the immigrant employee has a non-U.S. university degree, USCIS requires a third-party educational evaluation. 

An additional 20,000 visas are set aside for graduate degreed positions.  This applies to non-U.S. citizen employees who have obtained a U.S. master’s degree or higher. 

The statutory H-1B cap of 65,000 for the fiscal year will likely be met within the first week of the filing period, which begins on April 1, 2014.  All applications received by the USCIS in the first week of April will be entered into the lottery.  Last April, USCIS received approximately 124,000 H-1B petitions during the filing period and reached the cap within the first five days of accepting petitions.  When it receives more petitions than the cap allows, USCIS uses a computer-generated random selection process known as the “lottery” to select a sufficient number of petitions to fill the 65,000 Bachelor degreed positions and the 20,000 advance degreed positions.  Immigrant employees with a U.S. Masters degree will have an opportunity to be selected under the 20,000 advanced degree cap. This year, the continued economic recovery is causing immigration practitioners to expect even more petitions to be submitted than last year, likely in the range of 130,000 to 150,000. 

H-1B Visa Petition Process 

Employers seeking an H-1B visa for a foreign worker to start work on or after October 1, 2014 should submit their H-1B visa petition as close to April 1, 2014 as possible, but no later than the first week of the filing period.  The petition process includes submitting the following to USCIS: 

1.  All sections of the Form I-129, Petition for a Nonimmigrant Worker, including the H Classification Supplement  and the H-1B Data Collection and Filing Fee Exemption Supplement; and

2.  A signed check or money order with the correct fee amounts (H-1B filing fees, payable to the federal government, are $2,325.00 per petition; and additional $1,225.00 can be paid to expedite the processing time). 

Petitions not selected in the lottery will be rejected and the petition and filing fees will be returned to the employer.  Unfortunately, rejection means that the company may not employ the non-U.S. citizen individual that year and the affected foreign national may need to leave the U.S. 

For accepted petitions, the processing time typically is three to five months, unless the employer submitted a $1,225 expedite fee which reduces the processing time to 15 calendar days.  Upon approval, USCIS will issue an I-797 Approval Notice which authorizes the immigrant employee to begin work immediately. 

Prepare to File At Earliest Date 

To increase your chances of acceptance of your H-1B petitions, plan to get your petitions to USCIS on April 1, 2014, the first day of filing.  Completing the forms takes some time and requires the employer to attest to certain salary requirements and conditions of work.  This means that you must gather the necessary salary, working conditions and other information to get your documents in order now. You have just two weeks before the filing period begins so get your petitions ready. 

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