Alexander Lebedinski

H-1B VISA PETITION FILING SEASON FOR FY 2015 BEGINS ON APRIL 1, 2014

U.S. employers use the H-1B visa program to employ foreign workers in specialty occupations that require theoretical or technical expertise along with at least a bachelor’s degree or its equivalent. Such workers include scientists, engineers, and computer programmers, among others.  The U.S. Citizenship and Immigration Services (USCIS) will start accepting H-1B visa petitions subject to the fiscal year (FY) 2015 cap (the numerical limit on H-1B petitions) on April 1, 2014, for a commencement of employment on October 1, 2014.  The H-1B cap will remain open for new H-1B filings until the 65,000 H-1B visas limit is reached.

The following types of H-1B visa petitions are exempt from the annual cap:

  1. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher.
  2. Petitions for new H-1B employment if the beneficiaries will work at:
  • Institutions of higher education or related or affiliated nonprofit entities;
  • Nonprofit research organizations; or
  • Governmental research organizations.
  1. Petitions filed on behalf of current H-1B workers who have been counted against the cap in one of the prior years (employers can file these petitions at any time, subject to certain requirements) to:
  • Extend the amount of time an H-1B worker may remain in the U.S.;
  • Change the terms of employment for an H-1B worker;
  • Allow an H-1B worker to change employers; and
  • Allow an H-1B worker to work concurrently in a second H-1B position.

While it is impossible to predict exactly when the FY 2015 H-1B cap will be reached, the following history may be helpful.  For FY 2014, the USCIS received approximately 124,000 petitions in the first week of the filing period and had to use a “lottery” to select petitions it would process.  For FY 2013, the cap was reached on June 11, 2012, and for FY 2012, the cap was reached on November 22, 2011.  This trend seems to correlate with the improving U.S. economy and for FY 2015, we anticipate a high volume of petitions filed during the first week of the filing period.

If the proposed visa petition is subject to the annual cap, we recommend that employers plan in advance and file these petitions on April 1, 2012, or as close to that date as possible to improve the chance of securing a visa and avoid the rush that normally occurs when employers become aware of cap deadlines.  There are many steps involved in preparing an H-1B visa petition, including various documentation requirements, determination of the required wage, foreign degree equivalency evaluation and pre-filing processing timelines of the U.S. Department of Labor.  These steps can take approximately six weeks, and, if the petition is subject to a cap, should be commenced well in advance of April 1.

For more information about the H-1B visa petition requirements and for assistance in obtaining H-1B and other visas for foreign employees, please contact Alexander Lebedinski at (248) 457-7058 or alebedinski@gmhlaw.com

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