2016 Submissions Due April 1, 2015
If there is one thing clear from President Obama’s executive action on immigration in November 2014, it is that nothing was done to address the demand by businesses in the United States for more first-time H-1B visas. While calendar year 2015 just commenced, now is the time to start planning your H-1B submissions for fiscal year 2016.
The H-1B visa is a nonimmigrant visa that allows foreign nationals with specialized knowledge to work temporarily in the United States – usually in three-year increments. There is an annual cap of 65,000 first-time visas each fiscal year (Oct. 1 – Sept. 30), plus an additional 20,000 first-time visas for individuals with advanced degrees from a U.S. university or college. To qualify, the job offered must utilize the specialized knowledge of the individual. For example, if a foreign national graduates with an electrical engineering degree and has a job offer for an electrical engineer position, then eligibility for this visa exists. However, if that same person wants to pursue his/her passion of cooking, a job as a chef in a restaurant will not work because the specialized knowledge—electrical engineering—is not being put to use.
Foreign nationals with advanced degrees (master’s degree or PhD) from a U.S. university or college can count against the separate 20,000 first-time cap and, once that cap is exhausted, they can compete with others for the separate 65,000 slots. Note that students with advanced degrees from foreign universities are not eligible for consideration against the extra 20,000, but only against the 65,000. Also, be aware that 6,800 spots are reserved from the 65,000 made available by treaties and are limited to Chileans and Singaporeans—this is the H-1B1 visa. If nationals of Chile and Singapore do not use all 6,800, they are added back in to the next fiscal year’s quota.
For the last two years, demand for first-time H-1B visas has been red hot. More applications than available slots were received and a lottery system was put in place to randomly prioritize which applications were considered first until all available H-1B visas were exhausted. Everyone else was told, “Sorry, try again next year, unless some other visa option is available.” For Canadians and Mexicans, that means studying the NAFTA treaty to determine if a TN visa might work. For Australians, an E-3 visa might be an option.
The first day new H-1B applications can be submitted is April 1, 2015, with a formal start date, if approved, on October 1, 2015. Last year, approximately 172,500 applications were received on or around April 1, 2014. By April 10, the lottery was in full swing. All subsequent applications were rejected. All indications are that even more applications can be expected this April for fiscal year 2016.
Now is the time to start planning for your H-1B filing(s). Certain documents need to be collected. Certain notices need to be posted within specified times and a special file called the Public Access File must be created. Satisfaction that you will be paying the appropriate wages for the position and skill level for the locale of employment must be secured from the Department of Labor and that now takes seven days. An explanation of the business, the position at issue and its specialized knowledge requirement, and how the skill set of the individual meets the necessities of the job offered, must be prepared. Whether the candidate can seamlessly transition to the H-1B in the United States or is required to travel abroad, secure a formal H-1B visa stamped into his/her passport and reenter the United States should be explored and addressed. So, too, if any dependents are involved.
Those exempt from the mad dash to April 1 are universities and colleges, related or affiliated nonprofit entities, nonprofit research organizations, governmental research organizations, and all prior H-1B visa holders seeking to renew for an additional term.
If you would like help in this area or on visa issues in general, please contact Woods Rogers for assistance. We will be glad to help!
Article brought to you by:
Anthony H. Monioudis
Immigration, Labor and Employment,
Litigation and Dispute Resolution Practice Groups