Employers, get ready for the H-1B filing season

In 2013 many companies were unable to hire all of the foreign professional workers that they desired, because the number of cap-subject H-1B petition filed during the first week of April exceeded the number of available H-1Bs. Even for employers who filed their petitions that week, the petitions had to be selected according to a lottery system.

With the economy picking up, there is little doubt that there will be another H-1B lottery this year. These are the steps how to get ready to the H-1B filing season:

1) Remember that there is a limit of 85,000 H-1B petitions which can be approved during the fiscal year. Of these, 20,000 are reserved for persons with advanced degrees from a university in the United States. Employers are more likely to have their petitions approved for these advanced-degrees professionals, even if the position being offered only requires a Bachelor’s degree or its equivalent.

2) Employers which are “cap-exempt” do not have to worry about H-1B quotas. They can sponsor H-1B employees year round and pay less in filing fees. These employers include: (a) institutions of higher education; (b) non-profit entities which are “related to” or “affiliated with” an institution of higher education; (c) non-profit research organizations; and (d) government research organizations.

3) An H-1B petition cannot be submitted to the USCIS until a Labor Condition Application (LCA) has been approved by the U.S. Department of Labor (DOL). Last year, the processing times for LCAs became elongated. Therefore, it may be wise to file your LCAs in February even though this may shave off a few months from the usual 3-year H-1B initial validity period.

4) Is the prospective employee a citizen of any of the following countries – Canada, Mexico, Australia, Singapore or Chile? If so, you may be in luck. Canadian and Mexican professionals may be employed right away in Trade NAFTA (TN) status. Similarly, professionals who are citizens of Australia may be employed in E-3 status. Finally, the U.S. has Free Trade Agreements with both Singapore and Chile. Professionals from these countries are entitled to “H1-B1” status. They are guaranteed a certain amount of visas each year, and this amount has yet to be reached.

5) Do you want to obtain an H-1B visa for a physician who has obtained a J waiver? If so, you are in luck. Physicians with J waivers are not subject to the H-1B cap.

6) If you wish to hire a professional who is currently working in H-1B status for another cap-subject employer, he is exempt from the cap, and can start working for you as soon as you file an H-1B petition on his behalf even though the petition has yet to be approved.