Drummond Woodsum Attorneys at Law

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February 10, 2015

The turn of the calendar year serves as a great reminder to employers of foreign national workers: it's H-1B visa filing season again. Whether you are a multi-national enterprise, a high-tech employer, or a school, now is the time to assess whether you have any foreign national employees who require H-1B visa sponsorship. The filing window opens on April 1; however, identifying H-1B candidates should be done soon in order to provide ample time for planning and petition preparation. Based on the past several years of visa filings, the limited supply of H-1B visa numbers will likely run out in the first week of availability, so proper planning now is critical for maximizing your chances of claiming an H-1B visa for your employees.

H-1B visas are reserved for individuals who will be employed in a professional-level position. This is known in the immigration regulations as a specialty occupation. Specialty occupations are those postions where the industry standard requires, at a minimum, a Bachelor's degree in the field. Common examples include engineers, professors, teachers, accountants, scientists and certain managers and executives. When reviewing H-IB visa needs, employers should consider foreign nationals who graduated from U.S. colleges and universities currently working on Optional Practical Training ("OPT"), as well as foreign nationals they may wish to hire who are not already in the United States.

The annual quota of H-1B visas for all filers is 65,000. There are an additional 20,000 H-1B visas reserved for individuals who earned a Master's degree or higher from a U.S. university where the degree is related to the proposed occupation. When the filing window for fiscal years 2013 and 2014 opened on April 1, the quota was exceeded on the first day. As a result, the USCIS held a lottery to allocate the visas. Only those employers who file their petitions within the first week of April will have an opportunity for their employees to be included in the lottery. In 2014, only half of those who applied received an H-1B visa number. We expect that another lottery will be held this year.

Please note that although April 1, 2015 is the filing deadline, if an H-1B visa is granted, visa validity will start on October 1, 2015, the beginning of the government fiscal year. The employee will not start working in H-1B status until that date.

Not only should employers prepare to file their H-1B visas on April 1st, but employers should also develop a contingency plan in the event that the visa quotas are again exceeded on April 1st and the candidate is not selected in the lottery. One consideration may be whether the individual is currently working on Optional Practical Training and whether that person has a degree in a Science, Technology, Engineering or Math (STEM) field. If so, the person may be eligible for an additional seventeen months of OPT, if both the student and the company meet certain conditions. If applicable, other options may include the TN Visa for citizens of Canada or Mexico, the H-1B1 visa for citizens of Chile or Singapore, the E-3 visa for citizens of Australia, the L-1 visa for an intracompany transferee or the E-1 or E-2 treaty trader/treaty investor visa.

So, what can employers do to put themselves in the best possible position? Start now. Consider employee statuses and hiring needs. If necessary, employers should contact immigration counsel as soon as possible in order to be prepared to file H-1B visa petitions on April 1, 2015, as well as to develop contingency plans where necessary.

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