Filing H-1B Visa Petitions ~ Travel and Immigration 101

As of April 1, 2013, United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2014 (FY2014). Petitions for FY2014 will allow foreign nationals to work for petitioning employers as of October 1, 2013. USCIS will continue to accept new H-1B petitions after April 1, 2013, until the H-1B cap has been reached. At this time we encourage you to identify any employees who may require H-1B sponsorship so that a petition may be filed well before the H-1B visas for the next fiscal year are exhausted.

Congress has placed a numerical limit, or “cap,” on H-1B visas. For FY2014, the limit is 65,000, with an additional 20,000 visas available for foreign nationals who have earned a U.S. Master’s degree or higher. In past years, the cap has been reached in the first few days of April. Last year’s cap was reached in June 2012. With continuing signs of an economic recovery, there is a significant likelihood that the cap may be reached well before June of this year and perhaps as early as the first week of April. As there is no way to predict when this year’s H-1B quota will be exhausted, it is advisable to prepare H-1B petitions for filing on March 29, 2013, to ensure receipt on April 1, 2013, in order to improve your chances of securing visas for H-1B candidates.

Although Congress is currently considering comprehensive immigration reform as well as separate measures specifically concerning H-1B workers and the STEM occupations (Science, Technology, Engineering, and Math), no changes have yet been made and H-1B cap processing will continue as in years past.

If you have responsibility for your firm’s immigration planning and processing and you have already identified H-1B candidates, please initiate the H-1B petition process as soon as possible, keeping in mind that each H-1B petition requires certification by the Department of Labor (DOL) of a Labor Condition Application (LCA), which can take up to seven business days to be certified.

As always, we are prepared to strategize with clients regarding those potential employees who either do not qualify for H-1B status or who may have a gap in employment authorization prior to the start of the next fiscal year. Please keep in mind that certain foreign nationals may not be subject to the cap on account of having prior employment in H-1B status or working for certain cap-exempt employers. Please contact an attorney with Mintz Levin’s Immigration Practice to discuss any questions you may have about H-1B sponsorship. If you have identified a candidate who might require sponsorship, now is the time to begin the H-1B process.