It is H-1B season!

H-1B visas are available to allow U.S. businesses to hire professionals on a temporary basis for three years. The visa may thereafter be renewed for an additional three years. To qualify, the person hired must have at least a bachelor’s degree or higher in a specific occupational specialty and must be offered a position that requires that specific degree.

The occupational specialties that are generally accepted include, but are not limited to, most computer science jobs, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, physical therapy, business specialties, accounting, law and many teaching positions. Prior to filing the petition with Immigration, it is necessary to determine the “prevailing wage” for the position. This is necessary because the petition must include the prevailing wage and the wage offered to the foreign national professional must be equal to or greater than the prevailing wage.

Another requirement that must be met before the petition is filed with immigration is that the employer must file and have approved a “labor condition application” (LCA), which is filed with the U.S. Department of Labor. On the LCA, the employer certifies that:

  1. The H-1B nonimmigrants will be paid at least the wage paid to other individuals in the company who hold similar positions or the prevailing wage, whichever is higher.
  2. That the employment of the H-1B nonimmigrant will not adversely affect the working conditions of other similarly employed persons.
  3. That there is not a strike, lockout, or work stoppage during a labor dispute for persons holding similar positions in the company.
  4. That a copy of the LCA has been provided to workers employed in the position offered. This is provided to the bargaining representative representing workers in that company or posted at the employer’s place of business if there is no bargaining representative.

The reason that this article is titled “It is H-1B season” is that there is a limit on the number of H-1B visas that will be issued each year. The congressionally mandated cap is 65,000 per year. There is an exemption from the cap available for 20,000 petitions for foreign nationals who have a U.S. master’s degree or higher. This is known as the “advanced degree exemption.” There is also an exemption from the cap for those who work at universities, non-profit research facilities associated with universities and government research facilities.

The fiscal year for immigration (and thus H-1B visas) starts on October 1st. An employer is permitted to file the H-1B petition no sooner than six months in advance of the start of the fiscal year – on April 1st.  In recent years, the cap has been reached during the first week of April. This means that more than 85,000 approvable petitions were filed the first week of April. To deal with excess demand for the visas, USCIS has established a lottery system.

All petitions received by immigration during the first week of April are entered in the lottery. They first select the 20,000 from applicants qualified for the advanced degree exemption. Then, all those with advanced degrees who were not selected in the lottery for the 20,000 advanced degree positions are included in the general lottery for the remaining 65,000 available numbers. The lottery for the 65,000 is conducted and all applications not selected in either lottery are returned along with the filing fees. USCIS selects more than the 20,000 for the advanced degree lottery and more than 65,000 for the general lottery because they conduct the lottery before even looking at the application and they assume that a certain percentage of the applications, once reviewed, will be denied as not eligible.

For those employers filing petitions not selected in the lottery, they may not file another petition until April of the following year. Also, employers who decide after April that they need to hire a foreign professional must wait until the next April to file H-1B petitions. Remember that the petitions filed on April 1st are for work to start the next October. This means that those who are not selected in the lottery held the first week of April 2017 may apply in April 2018 for professionals to start work on Oct 1, 2018.

It is impossible to explain the rationale of this system. How many employers know in May of 2017 that they will need to hire a person for a professional position in October of 2018? How many can wait that long to hire a needed employee? While some would say “just hire an American”, in reality they would if they could find a U.S. person for the position. Much of the dialogue on our immigration laws focuses on how foreign nationals are treated. But it is U.S. employers who are being hurt by not being permitted to hire needed employees.

As an immigration attorney, I can’t explain that this system makes sense. I can only explain how it works and advise employers to be ready to file on April 1st.. That is why I am writing this blog in January to let employers know that it is now H-1B season and time to get started on the prevailing wage determinations and the LCA filings so that we can file the H-1B applications during the first week of April.

If you wish to file for an H-1B professional visa please contact my office as soon as possible so we can get started and be ready to file on April 1st.

Linda M Kaplan
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