H-1B cap season begins April 1

18 Dec 15

UNITED STATES

In anticipation of another busy H-1B cap season, employers are encouraged to begin preparing now to ensure that their H-1B petitions are completed well in advance of the first day of filing season. April 1, 2016 is the first day that U.S. Citizenship and Immigration Services will begin accepting H-1B cap-subject petitions for employees hoping to start work Oct. 1, 2016.

The annual H-1B cap of 65,000 remains in place for undergraduate-degree holders, with an additional 20,000 for individuals holding advanced degrees from U.S. educational institutions. Given the improving economy and strong demand for H-1B high-skilled foreign workers in the last three consecutive years (233,000 petitions were filed last year), the number of H-1B petitions will certainly exceed the caps in the first week of filing, which would require USCIS to conduct a random lottery selection from petitions received in the first week. With early planning, employers can keep their cases on schedule, ensure that they have enough time to address any unexpected issues and feel confident that their petitions will be ready for filing by the end of March.

Employers can take the following five steps now to lay the groundwork for a smooth H-1B cap season:

  1. Identify H-1B cap candidates

Employers should assess their workforce needs and identify H-1B cap-subject candidates. H-1B visas are appropriate for foreign workers in specialty occupations that require at least a bachelor’s degree or the equivalent. The numerical cap applies to foreign workers who are seeking new H-1B status, such as newly graduating foreign students in the U.S. or overseas workers who are seeking to start work in H-1B status. The cap does not affect individuals who were counted against the cap during the previous six years or those seeking to extend their H-1B status or change employers.

  1. Finalize job offers

Employers should work with their recruiters to finalize job offers for H-1B employees planning to start work Oct. 1, 2016. Employers should pay special attention to candidates in the U.S. whose current visa status is due to expire, such as students in F-1/Optional Practical Training status, intracompany transferees on L-1B visas, Australian nationals on E-3 visas, and Canadian and Mexican NAFTA professionals on TN visas.

  1. Send job descriptions

Before filing an H-1B petition, employers must first submit a Labor Condition Application (LCA) to the Department of Labor declaring that it will pay the H-1B employee at least the prevailing wage for the occupation and geographic area where he or she will work. The prevailing wage is based on the minimum education and experience required for the position.

The Labor Department normally takes seven days to certify an LCA, but delays often occur if a prospective H-1B employee’s salary is lower than the prevailing wage. To reduce this risk of delay, employers should send descriptions of the prospective H-1B employee’s position, including job duties and the position’s minimum requirements, to their BAL attorney as soon as they are complete. This will allow the attorney to flag any issues early enough to seek an alternate wage survey, if possible, and keep the filing schedule on track.

  1. Collect foreign transcripts 

Employers and individuals should not leave document collection and preparation to the last minute. In particular, foreign academic transcripts, certificates, and other educational documents are among the most time-consuming to prepare, because official versions must be obtained, translated and evaluated to show that the candidate has earned the equivalent of at least a U.S. bachelor’s degree. In addition, prospective H-1B candidates 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.

  1. Explore alternatives 

If the upcoming cap season resembles recent years, more than half of H-1B cap petitions will not be successful. Last year, USCIS received nearly 233,000 H-1B petitions for the 85,000 visas available. Employers are encouraged to explore potential alternatives to the H-1B category with their BAL attorney early in the season. Planning well in advance gives employers sufficient time to pursue other avenues, such as other visa categories, for workers who do not obtain an H-1B visa. After the close of this cap season, employers must wait until April 2017 to file H-1B cap petitions again.

BAL Analysis: Employers and employees can improve their chances of a successful filing season and avoid the last-minute rush by starting now and submitting all supporting documentation to their BAL teams as soon as possible.

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