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Haynes and Boone, LLP’s Immigration Practice Group reminds employers with a need for Cap-Subject H-1B petitions – those applications that are subject to the annual numerical limit – that the filing window for Fiscal Year 2015 is about to open. Over the last three years, the Cap has been reached at a much earlier date. For Fiscal Year 2014, the Cap was reached within the first week of the filing period, which ended on April 5, 2013. Given the pace at which the Cap has been reached in the last few years, employers with a need for H-1B workers should contact their attorney as soon as possible to begin preparing these petitions. 

The 2015 Fiscal Year runs from October 1, 2014 to September 30, 2015. Employers will be able to submit new H-1B petitions to the United States Citizenship and Immigration Services (“USCIS”) beginning April 1, 2014 (six months before the start of the 2015 Fiscal Year) and approved beneficiaries will be able to commence their H-1B employment on October 1, 2014. USCIS will accept only 65,000 regular petitions (including 6,800 set aside for employees from Chile and Singapore) and 20,000 U.S. Master’s degree (or higher) petitions. If the Cap is reached in the first few days of April 2014 as it was last year, USCIS is expected to institute a random lottery process to allocate the Cap amongst those who filed petitions. For Fiscal Year 2014, approximately 124,000 H-1B petitions were filed during the first week and USCIS used a computer-generated random selection process to meet the 65,000 regular category and 20,000 advanced U.S. degree allocation. 

Experts predict that the Cap will be met in the first week of filing due to a higher number of applications than last year for a number of factors, including those employers who plan to re-file H-1Bs that missed the cap last year, stricter USCIS scrutiny of other work visa categories (for example, L-1 intracompany transferees), an improving economy and increased workforce hiring. 

Assessing Your Cap-Subject H-1B Needs 
H-1B visas are available for specialty occupations requiring the attainment of a bachelor’s degree or its equivalent. For current or transferring employees, employers should consider who might need to file an H-1B for Fiscal Year 2015:

• Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need a change of status to H-1B;
• Determine whether any TN employees (NAFTA professionals) might want an H-1B to be eligible to apply for adjustment of status to a permanent resident;
• Review those employees who are on expiring O visas which are renewable in only one year increments (as compared to the three year visa period under an H-1B);
• Check whether your transferring employees who currently hold an H-1B have already been counted against the Cap (note: anyone who is coming to you from an employer that is exempt from the numerical limit (“Cap-Exempt”) will not have been counted toward the Cap and under that transfer, may now fall within the quota); and
• Consider whether you employ someone in L-1B status (intra-company transferees with specialized knowledge) who might need to switch to an H-1B to gain an additional year of status.
  

Cap-Exempt Circumstances 
Employers may be exempt from the numerical limit in certain situations. These Cap-Exempt situations include: higher education institutions and related non-profits; non-profit or government research organizations; and beneficiaries who have held H-1B status in the last six years (but have not exhausted their entire six-year period). 

For more information, please contact your Haynes and Boone Immigration attorney:

Brent Huddleston 214.651.5307 [email protected]

Katie Chatteron 713.547.2291 [email protected]

 

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