Employers urged to start preparing for record H-1B filings

30 Dec 14

UNITED STATES

BAL urges employers to begin preparing for what is expected to be a record-setting year of H-1B cap petitions.

Employers and employees should start planning now to ensure their petitions are ready well in advance of the first day of the filing season on April 1, 2015. In the past two years, the number of petitions exceeded the cap in the first week of filing, triggering U.S. Citizenship and Immigration Services (USCIS) to stop accepting petitions and initiate a lottery-selection system. This trend is expected to continue this filing season. Last April, H-1B cap petitions hit a historical high of 172,500, up from the previous year’s filings of 124,500. Meanwhile, the Congressionally mandated annual cap on H-1Bs has not been raised and will remain at 65,000 for undergraduate-degree holders (plus an additional 20,000 for individuals holding advanced degrees from U.S. institutions).

BAL has begun accepting and working on cases, and we are predicting a very high demand for H-1B visas again. Total filings are certain to exceed the caps again, most likely in the first week of the filing period. It is critical that employers and employees start early so they will be ready to submit petitions for receipt by USCIS on April 1.

Finalize recruiting

Employers wishing to bring on H-1B employees for Oct. 1, 2015 start dates should work with their recruiters to finalize job offers. Employers should pay special attention to candidates who are in other visa statuses due to expire, such as F-1, L-1B, E-3 and TN.

Send job descriptions early

H-1B petitions can run into delays when an employee’s salary is lower than the prevailing wage. At the time the H-1B goes into effect, employers are required to pay H-1B employees the prevailing wage for the occupation in the geographic area where the employee will work. The prevailing wage is based on the minimum education and experience requirements for the position. The labor condition application is the employer’s declaration that it will pay at least the prevailing wage; therefore the labor condition application, which takes seven days to be certified, cannot be submitted until any potential wage issues have been resolved.

Employers can reduce the possibility of delays by sending job descriptions, including the position’s minimum requirements, to their BAL attorney as soon as they are complete. This will allow BAL to determine if there may be issues with the prevailing wage with enough lead time to seek an alternate wage survey, if possible, and keep the filing schedule on track.

Begin collecting documents

Employers and individuals should allow sufficient time to gather corporate and other supporting documents. Foreign academic transcripts, certificates and other educational documents are among the most time-consuming to prepare, as official versions must be obtained, translated and evaluated to show that they are the equivalent of at least a U.S. bachelor’s degree. Individuals who do not have a formal degree must gather and provide evidence of sufficient years of experience so that an official educational equivalency document may be prepared.

Consider alternatives

Employers should keep in mind that filing H-1B petitions does not guarantee approval. Given the anticipated demand this season, the chances of petitions being selected for adjudication could fall even lower than previous years. Employers are encouraged to explore potential alternatives to H-1B visas early enough to be able to pursue those alternatives if necessary.

BAL Analysis: Employers and employees can avoid the rush to file by laying the groundwork for H-1B filings as early as possible.

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