On April 1, employers will be able to file H-1B petitions for their employees who require a first-time H-1B visa for work that will commence on October 1, 2013.
As perhaps the most commonly used visa for professional-level employment in the U.S., the demand for new H-1Bs will exceed the quota very early this year. Indeed, with the improving economy, USCIS is likely to receive the full allocation of visa petitions in April, and perhaps even in the first week of filing. Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2014, and that will be for work that commences on October 1, 2014.
Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (Master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 “H-1B1” visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore).
While the vast majority of H-1B applicants in business are subject to the cap, some H-1B petitions can be filed at any time because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who previously have been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.
Employers should now identify first-time H-1B employees and begin preparing necessary petitions for the April 1 filing date. (Petitions should be completed by March 29, 2013 for receipt on Monday, April 1.) In addition, there are a number of steps employers must complete before filing an H-1B petition with USCIS, including obtaining certification from the Department of Labor regarding the position wage. Employers should take time now to collect academic and work-experience documentation; secure translations and educational evaluations, where appropriate; organize wage and compensation data; and prepare detailed job descriptions.
Moreover, with increased denial rates and skyrocketing requests for additional evidence, employers are well advised to meticulously and carefully prepare their petitions. (Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. RFEs (“Requests for Evidence”) rose from 4 percent in FY04 to 26 percent by FY11.) A review of company H-1B public access files also may be prudent to ensure that files are complete and in full compliance as well as to determine that valid employer-employee relationships have been maintained.