With the federal government's fiscal year 2013 approaching,
employers who wish to sponsor a first-time H-1B worker may file
their petitions starting April 1, 2012. United States Citizenship
& Immigration Services (USCIS) regulations allow such petitions
to be filed six months before the start of the coming fiscal year
(October 1, 2012). With the start of H-1B season looming, employers
should review their workforce and recruitment pool to determine
whether they will need to file a petition for fiscal year 2013.
H-1B visas are reserved for workers in a specialty occupation
that requires a Bachelor's Degree or higher. USCIS grants these
visas in three-year increments, for up to six years. If an employer
wishes to employ an H-1B worker, it must file an H-1B petition and
offer the potential employee a wage that meets the prevailing wage
for the position in the geographical area of employment.
Additionally, the employer must satisfy a number of mandatory
There are only 65,000 H-1B slots available each fiscal year.
USCIS also grants an additional 20,000 H-1B visas to employers who
hire employees with a Master's Degree from a college or
university in the United States.
Employers who plan on submitting a petition should do so as
close to April 1, 2012 as possible. In past years, USCIS has
reached the cap limit on the first day. In fiscal year 2012 the cap
was reached on November 22, 2011, a full three months earlier than
in fiscal year 2011. USCIS awards H-1Bs on a rolling basis
throughout the year, but when the cap is reached USCIS uses a
random selection process to determine which petitions will be
accepted for processing. Because no one knows when the cap will be
reached, employers should file a petition on April 1 in order to
guarantee an opportunity for an H-1B visa.
The April 1 deadline applies to foreign workers who will engage
in "new" H-1B employment. Such workers may not begin
their H-1B work until the beginning of the fiscal year in which the
visa was issued (i.e., October 1). Not all H-1B workers
are subject to the annual allocation of visas; under certain
circumstances the USCIS will consider workers to be
"cap-exempt," such as the following:
Individuals who already have an H-1B visa and wish to extend
the amount of time they remain in the United States;
Workers who, in the past six years, have been counted toward
the cap, unless they would be eligible for another full six years
of admission because they have been outside the United States for
at least one full year since they last held their H-1B status;
Individuals who will be employed at an institution of higher
education, a related or affiliated nonprofit entity, a nonprofit
research organization, or a governmental research
Petitions filed to change the terms of employment of a current
H-1B visa holder;
Petitions filed to allow a current H-1B worker to change
employers (unless the worker is switching from a
"cap-exempt" entity to an employer who is subject to the
Current H-1B visa holders who wish to work concurrently in a
second H-1B position; and/or
J-1 foreign medical graduates who have received a "Conrad
30" waiver of the two year foreign residence requirement.
Reinhart stands ready to answer any questions you may have about
the H-1B petition process and whether a visa will help your
organization meet its workforce-related goals. If you are
contemplating filing a petition, contact your Reinhart attorney or
one of Reinhart's Immigration attorneys as soon as possible to
ensure timely filing of the petition.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Employers of foreign nationals should note that registration for the Fiscal Year 2015 Diversity Visa ("DV") Lottery opened yesterday, October 1, 2013, at noon (EDT) and will remain open until noon (EDT) on Saturday, November 2, 2013.