Ukrainian Law Blog: H-1B Season is Here

What is H-1B Classification?

The H-1B classification provides work authorization to foreign nationals seeking long-term, but temporary, positions in “specialty occupations” with U.S. employers. A specialty occupation is one which requires theoretical or technical expertise in specialized fields including, but not limited to, architecture, engineering, business, mathematics, science, arts, law and medicine, and which require a bachelor’s degree or higher.

To obtain H-1B classification, the employer must file a petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of the prospective employee. If approved, the employee may initially work in the U.S. for up to three years. Work authorization can be extended up to six years, with further extensions possible for those who have started the permanent residency process.

How does one obtain H-1B classification?

Foreign nationals seeking an H-1B status for the first time are subject to an annual cap. Only 85,000 new H-1B visas are available each governmental fiscal year beginning October 1. Of those, 20,000 are reserved for foreign nationals who possess a master’s degree or higher from a U.S. academic institution. Those with advanced degrees who are not selected (due to the cap) for one of the 20,000 available visas are then considered for one of the remaining 65,000 H-1B visas.

For all applicants subject to the cap, employment cannot commence any earlier than October 1 of each year and applications cannot be filed before April 1 of each year. Generally, the cap does not apply to foreign nationals who will work at institutions of higher education or nonprofit entities related to or affiliated with institutions of higher education; at nonprofit research organizations; and at governmental research organizations. These organizations may file H-1B petitions for prospective employees at any time without limitation.

In 2015, USCIS received approximately 233,000 H-1B petitions during the filing period. The number of petitions is expected to exceed the 85,000 cap again this year.

When should I start planning?

Advance planning is crucial. Employers that fail to file H-1B petitions by April 1 may lose the opportunity to employ the intended foreign national candidate. Therefore, we recommend employers contact an immigration attorney as soon as possible, preferably by February 15, for assistance in evaluating their options and to begin gathering necessary documentation.

What about graduates on F-1 student visas whose OPT authorization expires after April 1, but before the October 1 H-1B effective date?

Many foreign students on F-1 student visas obtain work authorization after graduation to remain in the U.S. and work for 12 months under the Optional Practical Training (OPT) program. Those who earned degrees in STEM fields (science, technology, engineering, and mathematics) are eligible for an additional 17 months of work authorization. Insofar as most academic years conclude in early summer, many foreign students’ OPT work authorization likewise expires in early summer.

Upon expiration, the employee is no longer authorized to work. An employer may wish to retain the employee under H-1B status, but, if the employee is subject to the H-1B cap, the employee cannot begin working until October 1 at the earliest. This creates the potential for a gap in work authorization between the time the OPT expires and October 1, known as the “cap gap.”

For those employees whose employers have filed an April 1 H-1B cap petition prior to the expiration of their OPT work authorization, the cap gap is closed, and their work authorization will be extended until October 1 so long as their petition is selected by USCIS for processing. Employers wishing to hire or retain employees who are working pursuant to OPT should therefore plan to file an H-1B petition during the first week of April.