H-1B visa cap season is rapidly approaching as the deadline to file for Fiscal Year 2015 begins April 1, 2014 and ends April 7, 2014 (the first five business days of April). We strongly encourage Employers to begin preparing for the H-1B visa process as soon as possible and to not wait till the last minute. The limit on H-1B cap subject petitions is 65,000, with an additional 20,000 visas available for individuals who have earned a U.S. Master's degree or higher from an accredited U.S. educational institution.
Timing is everything! In order for the petition to be filed in within the filing window, in order to be considered in the random lottery process that is again expected to occur this year, a significant amount of information and documentation needs to be gathered, synthesized and presented in an approvable set of forms and supporting statement. This year, we expect that even more people will be applying for H-1B visas than last year. Last year there were approximately 132,000 petitions submitted for the available 65,000 visas. Accordingly, it is anticipated that the cap will again be reached in the first week of April and USCIS will run its random selection process to choose those petitions that will be accepted for processing (i.e. actually considered for an H-1B visa). As any of you familiar with the H-1B visa process, selection in the random lottery process does not guarantee an H-1B visa; it only guarantees that the petition will be judged on its merits and, if approvable, then an H-1B visa will be granted. Rejection from the random lottery process, however, is a firm/non appealable denial – no H-1B visa is possible for those petitions.
If you are an employer seeking to sponsor a foreign national for an H-1B visa, such as a student currently working pursuant to an optional practical training employment authorization which is set to expire this coming spring or summer, then you should begin the process of preparing for that H-1B petition sooner rather than later. If your H-1B petition is not properly received by USCIS within the first five business days of April 2014 so that it may be considered in the random selection process, then you will not be able to secure an H-1B visa for the coming year. Please recall that irrespective of when the petition is filed or if/when approved, the employment start date of the visa will not be earlier than October 1, 2014. If you are lucky enough to be filing a petition for a student who currently has optional practical training employment authorization which will expire this spring or summer, then so long as the H-1B petition for that person is pending or approved, then that person's work authorization is automatically extended until Sept. 30, 2014. If the petition is rejected (random) or otherwise denied, this automatic extension of employment authorization immediately ceases.
When the Fiscal Year 2015 H-1B cap has been reached, employers will be unable to seek H-1B Cap-subject visas again until April 2015 (for start dates of Oct. 1, 2015).
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.