Katie P. Jacob

H-1B Visa Filing Season Starts April 2, 2018

January 8, 2018Legal Alerts

Why is April 2, 2018 Important?

April 2, 2018 is the first day on which U.S. Citizenship and Immigration Services (USCIS) will accept H-1B specialty worker petitions for the next fiscal year beginning October 1, 2018. To qualify for the H-1B category, the position offered must be a specialty in which a bachelor's degree (or its equivalent) is normally the minimum requirement, and the foreign national employee must hold a bachelor's level degree (or its equivalent) in the specialty defined by the position. In some cases, the bachelor’s level threshold may be met through a combination of education and work experience.

Due to the overwhelming demand for the annual allotment of 85,000 new H-1B slots, employers who wish to file new H-1B petitions for current or future employees should do so on April 2nd. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for more than 10 years. Last year, USCIS received 199,000 petitions within the first week then conducted a random lottery to determine which petitions would garner the 85,000 slots.

Are There Certain Employees We Should Consider?

Yes, four situations come to mind:

1. Students who hold F-1 visa status and who are working for your organization under a grant of Optional Practical Training work permission;

2. Certain L-1 Intracompany Transferees or TN (NAFTA) workers who work for your organization;

3. Candidates who are not yet working for your organization but whom you have an interest in employing in the near future; and

4. Dependent spouses who hold H-4 status and who have been authorized to work with an Employment Authorization Document (EAD card).

F-1 students and L-1 transferees have limited-duration work permission. If you wish to continue employing these individuals beyond their current authorization, the H-1B category may be an option.

Why F-1 Students?

Some F-1 students may hold Optional Practical Training (OPT) work permission that is limited to one year. Other F-1 students may be eligible for an additional 24 months of OPT work permission. Either way, OPT is time-limited and you should consider H-1B status to continue employment beyond the OPT period.

Why L-1 Intracompany Transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial or specialized knowledge capacities for at least one year with a commonly-owned foreign company, and who are in the United States working for the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years.

Why TN Employees?

While Trade NAFTA (TN) workers are not limited in employment duration like their L-1 counterparts, pursuing permanent residence while holding TN status can be problematic. Employers may want to change their TN employees to the H-1B category to facilitate permanent residence (green card) sponsorship.

Why H-4 Employees with Employment Authorization Documents?

In 2015, a lawsuit was filed against the U.S. Department of Homeland Security (DHS) challenging the legality of the H-4 EAD program. Although the lawsuit is currently in abeyance, DHS is considering eliminating the program. Because the fate of the H-4 EAD program is uncertain and there is a risk the program may be altered or terminated, H-4 spouses working with EADs may wish to have their H-4 statuses changed to H-1B.

Are There any Exemptions from the Annual H-1B Cap?

Persons already counted under the H-1B cap and who need an extension of stay are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a new employer are exempt from the cap. The annual limitation applies only to persons not yet counted against the annual cap. Also, certain types of educational or nonprofit organizations that file H-1B petitions are exempt from the H-1B numerical limitation.

Contacting Dinsmore About Filing an H-1B Petition

If you have not already contacted Dinsmore about filing an H-1B petition for an employee who needs to enter the H-1B category, please do so immediately. If you have any questions, please contact any one of our immigration attorneys.