As the start of the H-1B filing season draws near, employers looking to sponsor foreign workers in specialty occupations are urged to get their petitions ready before the filing window opens on April 1, a Wednesday.
Every year, the United States Citizenship and Immigration Services (USCIS) allocates a maximum of 65,000 new H-1B visas with an additional 20,000 visas available to graduates with advanced degrees from U.S. universities.
For the past two years, the number of H-1B petitions filed during the first week of filing exceeded the annual H-1B visa quota. In 2013, approximately 124,000 petitions were filed during the five-day filing window. In 2014, around 172,500 petitions were filed within the same number of days.
This year, it is expected that H-1B filings will again exceed the annual cap during the first five days of the filing season. The demand for cap-subject H-1B numbers for fiscal year 2016 which begins on October 1, 2015 is predicted to be even higher than last year. To increase the chances of getting an H-1B visa number, employers should prepare in advance to ensure that the petitions are received by the USCIS between April 1 and April 7.
Before the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor.
The employer makes several attestations in the LCA including a promise to pay the required wage to the worker for the entire period of the authorized employment.
The employers also attest in the LCA that the current employees and the union, if any, are given notice of the petition and that there are no strike or lockout in the occupational classification at the place of employment.
The H-1B employer must also have documentary evidence of the beneficiary’s educational background and work experience to make him/her eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluations and license to practice the profession, if required, among others.
A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.
Employers must make sure that the petition made on Form I-129 is properly completed. There is a base fee of $325 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.
Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request.
For two consecutive years now, the USCIS has conducted an H-1B lottery to select at random the petitions required to reach the cap from the pool of petitions received on the final receipt date. The petitions not selected in the lottery process as well as those filed after the final receipt date were rejected and returned with the filing fees.
There is no doubt that the annual limit on H-1B visa number can no longer keep up with the demand of U.S. companies. Many are hopeful that Congress will finally address this problem. In the meantime, if the H-1B quota is reached this year as predicted, U.S. employers will have to rely on luck whether they can hire much-needed high-skilled workers for fiscal year 2016.