By James Jensen
It is again
the time for U.S. employers to begin considering filing H-1B petitions for
prospective new foreign national employees. These petitions can be submitted to
U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2016 for
employment beginning no earlier than Oct. 1, 2016, the beginning of the
government’s 2017 fiscal year.
The H-1B visa category provides for the
temporary employment of foreign nationals who will work in “specialty
occupations,” or those jobs for which at least a bachelor’s degree in a
particular field is required, such as engineers, teachers, accountants, and
many professional information technology positions.. The problem is that there
are only 85,000 H-1B visas available each year and we again expect, as in years
past, for these numbers to be quickly claimed.
There
is a limit, or “cap,” of 85,000 H-1B visas available each year: 65,000 for
bachelor degree-level candidates and 20,000 for advanced degree graduates of
American universities. However, we anticipate that the available H-1B visa
numbers will again be exhausted within the first week employers are eligible to
file new H-1B petitions.
When this occurs, USCIS will conduct a
computer-generated lottery to select which petitions will be accepted for
adjudication. If a petition is accepted and approved, the foreign national
employee will be eligible to receive an H-1B visa number and begin, or
continue, working for his or her petitioning employer.
The limit of 85,000 H-1B visas is specific for
potential employees initially seeking to acquire H-1B visa or status, and does
not impact current H-1B employees. Accordingly, cap-subject individuals include
those acquiring the H-1B visa or status for the first time, such as foreign
(F-1) students changing to H-1B status and individuals abroad who plan to enter
the U.S. for the first time using an H-1B visa.
Therefore, for employers and H-1B candidates who
failed to get a visa number last year or who are waiting to apply this year, we
advise them to be proactive and move quickly to ensure their H-1B petitions are
prepared and ready to file no later than April 1, 2016.
Once the H-1B cap has been reached, no new petitions
may be filed until the next fiscal year—April 1, 2017 for employment beginning
Oct. 1, 2017. This can make both hiring and planning an employment start date
difficult. Although employers can file petitions up to six months in advance of
the requested effective date—which makes the April 1 filing date so
critical—the approved petition will not be valid until October 1. Thus, even
though employers may file petitions on or after April 1 for the next fiscal
year, the petition will not be effective until October 1.
Additionally, the H-1B cap particularly impacts F-1
students who have post-graduate work authorization—or Optional Practical
Training (OPT). Generally, OPT is valid for 12 months, and in certain cases can
be extended an additional 17 months for students who completed a U.S. science,
technology, engineering or math (STEM) degree from a U.S. university. OPT also
allows former students to remain in the U.S. and work while awaiting the filing
or approval of an H-1B petition.
Often these individuals’ OPT will expire
before an anticipated October 1 start date, leaving them unauthorized to
continue working. Fortunately, there is a “cap gap” remedy for foreign national
employees who have an H-1B petition filed on their behalf. If, for example, an
individual’s OPT expires on June 30, 2016, but this person has an H-1B petition
filed before the expiry of their OPT and accepted by USCIS, then their work
authorization is automatically extended to September 30.
This allows the
foreign national employee to continue working until the requested start date of
the H-1B petition, or until the petition is denied or withdrawn. However,
recent proposed revisions to this rule would extend STEM OPT to 24 months, for
a total of 36 months of OPT; but presently this change is uncertain. In August
2015, the U.S. District Court for the District of Columbia vacated the existing
STEM OPT rule, and currently the Department of Homeland has a Feb. 12, 2016
deadline to publish a new rule. At this point, we’re uncertain when or if the
new rule will be effective.
Finally, in limited situations, other employment visa
categories may be available for foreign workers in lieu of the H-1B. For
example, Canadian or Mexican nationals may qualify for Trade Nafta (TN) status,
which is available for professional engineers, accountants, scientists,
lawyers, pharmacists and teachers; who have U.S. job offers and meet qualifying
criteria such as having a degree, professional license or experience.
The TN
category does not have a numbers cap nor does it have a limit on the amount of
time the worker can remain in the U.S. Australian professionals are eligible
for E-3 visa status if they will work in a specialty occupation and have
completed a bachelor’s degree or its equivalent, just like the H-1B category.
Also, Singaporean and Chilean citizens are eligible for H-1B1 status, again if
they will work in a specialty occupation and have completed a bachelor’s degree
or its equivalent. In this category, 1,400 H-1B1 visas are available annually
for Chileans, while 5,400 are reserved for Singaporean nationals.
For those H-1B cap-subject individuals, such as those
currently abroad or who do not have valid OPT or H-1B status, they must first
hope their H-1B petitions are accepted and approved by USCIS and then wait
until October 1 before commencing employment. If you have any questions
regarding the H-1B visa category or any of the issues discussed above, please
contact one of our immigration attorneys, including Rob Cohen, Catherine Kang or James Jensen.
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