February 1, 2013

PREPARING FOR H-1B CAP SEASON IN FISCAL YEAR 2014: HOW TO MAKE THE CUT AND STAY COMPLIANT

Despite recent publicity about far-reaching immigration reforms, one facet of the immigration system will remain unchanged come April 1: the seasonal rush of employers aiming to meet the annual H-1B quota when U.S. Citizenship and Immigration Services (USCIS) begin accepting H-1B petitions for fiscal year 2014. Although the federal government annually allocates 65,000 H-1B visas to eligible foreign national employees, USCIS receives far more H-1B petitions within the first weeks or even days of April 1 during each fiscal year - leading to a random selection process that leaves many applicants waiting in the wings until the following year.

H-1B petitions subject to the 2014 yearly cap may be filed beginning on April 1, 2013, six months prior to the start date of the 2014 fiscal year (October 1, 2014). It is crucially important to prepare all cap-subject H-1B petitions for filing on or as close to April 1, 2014 as possible in order to maximize the probability of securing one of the limited number of visas available for employer sponsorship before October 1, 2014. Although poor economic conditions likely decelerated the rate at which the annual cap was reached in fiscal years 2012 and 2013, there is reason to believe that this year’s quota will be met soon, or even immediately, after April 1, 2013.

Eligible H-1B Employees

Companies utilize the H-1B program to employ qualified foreign nationals in positions that require specialized knowledge or skills, including areas such as science, engineering, teaching, and computer programming. In addition to the 65,000 cap-subject H-1B visas allotted each year, the federal government allocates an additional 20,000 H-1B visas for workers who have earned advanced degrees such as a Master’s or Ph. D. in the United States. In order to be eligible for the “Master’s cap,” the employee must complete his/her advanced degree program prior to the filing date and may be eligible for selection in the regular H-1B lottery if he/she is not picked in the separate lottery process that occurs when the additional quota of 20,000 advanced degree H-1B visas is also exhausted ahead of time.

Barring certain exceptions, current H-1B employees are generally not subject to the annual cap. This category includes workers who petition to extend a previously granted H-1B status, “port” from one H-1B employer to another, amend the terms of existing H-1B employment, or file for a concurrent H-1B position. In addition, foreign nationals who seek employment with an institute of higher education, a related or affiliated non-profit entity, or a non-profit private or government research organization are not subject to the annual H-1B quota.

Timelines and Procedures

In order to successfully file cap-subject H-1B petitions for receipt by USCIS on April 1, employers and prospective foreign national workers should take several measures to ensure that the required components of a complete H-1B petition are timely and properly prepared. Among these is the Labor Condition Application (LCA), which must be posted at the employee’s worksite(s) for ten (10) federal business days and submitted to the U.S. Department of Labor (DOL) for certification. A certified LCA must accompany each H-1B petition. Although delays are possible, LCA certification typically takes seven (7) calendar days. Thus, employers and their counsel must budget the LCA certification period into the total preparation time of H-1B petitions, particularly time-sensitive applications.

The annual cap season is also a good time to re-evaluate corporate compliance procedures and confirm that all Public Access Files (PAF) are easily accessible and up-to-date. Given USCIS’ increased enforcement efforts in recent years, employers should ensure that all existing H-1B employees have a complete and current PAF available for public inspection, and that a correct LCA is on record with evidence of posting at the employee’s worksite(s). Employers should also verify that the foreign national employee is working in the position noted on his/her H-1B petition, is paid the higher of the actual or prevailing wage and at the salary noted in the petition, and has not experienced any material changes to the job description noted in the H-1B petition, including a promotion or demotion. Furthermore, it is important to consult with counsel about existing or prospective plans for corporate restructuring in order to assess the immigration consequences of such developments.

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For additional information about the 2014 fiscal year H-1B quota or general information about the H-1B application and compliance processes, please contact your GT Attorney.