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As you may know, each year, the U.S. government makes available a limited amount of visas in the H-1B Specialty Occupation temporary work visa classification. For its Fiscal Year 2014, U.S. Citizenship and Immigration Services ("USCIS") will begin to accept H-1B cap petitions for filing starting on April 1, 2013, six months before the start of Fiscal Year 2014.
What Is the H-1B Annual Quota?
The annual cap or quota on H-1B visas is 85,000. Of that number, 20,000 are reserved for foreign nationals who have received a master's or more advanced degree from a United States university. However, not all employers are subject to the cap. For example, employers filing H-1B petition extensions or amendments on behalf of foreign nationals already working in H-1B visa status for the existing employer are exempt from the quota. In addition, employers filing new petitions to change H-1B employers on behalf of a foreign national working in H-1B visa status for a different employer are also exempt from the quota (except where the foreign national is currently employed by a cap-exempt employer such as a U.S. institution of higher education and now is switching to a cap-subject private employer).
When Can an Employer File?
USCIS will start accepting cap petitions on Monday, April 1, 2013. An employer may send a petition for filing no earlier than Friday, March 29, 2013, to arrive by overnight courier service at USCIS the following Monday. The date received at the appropriate USCIS Service Center having jurisdiction over the place of intended employment is the date that counts for "filing" purposes. A petition received earlier than April 1st will automatically be rejected. Petitions received starting Monday, April 1 through Friday, April 5 will be treated the same for cap-counting purposes, as USCIS will wait for those five business days before processing. If USCIS should receive more than the sufficient number of petitions in the five days to use up the annual quota, as it has in the past, it then will hold a lottery to randomly select by computer generation those petitions it will process. Petitions not selected will be returned to the employers. If the H-1B cap is not reached during the initial five-day period, then USCIS will continue to accept petitions until the quota is reached.
We Recommend Employers Start to Prepare Now
No one knows how early the H-1B cap will be reached this year. Last year, it was reached on June 11, 2012. Early preparation of an employer's petition is therefore critical. Preparing and processing H-1B cap petitions is a lengthy procedure that first requires obtaining an approved Labor Condition Application ("LCA") from the U.S. Department of Labor (the "DOL") before the petition may even be filed with USCIS. The DOL has seven days in which to approve or certify the LCA; however, for employers filing an LCA for the first time, it will take longer for the DOL to verify the employer's FEIN, therefore delaying the certification. If the foreign national's degree is not from a U.S. institution of higher education, it must first be independently evaluated in terms of its equivalency to a U.S. degree, a bachelor's being the minimum requirement (or equivalent work experience using a designated formula of 3 years of work experience for every academic year of college missing). All of these actions take time. Demand for H-1B cap petitions may well be greater this fiscal year than in the past several years due to increased hiring in many economic sectors. Accordingly, we recommend that employers start to gather documentation promptly and plan to submit their petitions on April 1, 2013, in order to increase the likelihood of getting one of the coveted H-1B visas.
Day Pitney Attorneys Daniel Schwartz, Michael Lane and Lindsey Viscomi authored the article, "Don't Be Late Paying Terminated Employees in Massachusetts," for Law360 Employment Authority.
Day Pitney Employment and Labor attorneys Glenn Dowd and Lindsey Viscomi will be presenting "Critical HR Transactions," at the CBIA 2022 Human Resources Conference on March 17 at the Trumbull Marriott Shelton.
Employment and Labor attorneys Heather Weine Brochin, Michael T. Bissinger, Howard Fetner and Trisha Efiom co-authored the article, "Keeping Up With New York's New Employment Laws," published by Employment Benefit Plan Review.
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Day Pitney Alert
Day Pitney Employment and Labor Partner Rachel Gonzalez was featured in the Diverse Lawyers Network newsletter for being a recipient of the Executive Women of New Jersey Salute to the Policy Makers Award.
Day Pitney Press Release
Employment and Labor Partner Glenn W. Dowd is quoted in the Hartford Business Journal article, "Many CT Businesses Breathe 'Sigh of Relief' After Federal Vaccine Mandate is Withdrawn."
Employment and Labor partner Glenn W. Dowd is quoted in the Hartford Business Journal article, "Small Business Anxieties Still Persist As CT's New Paid Leave Program Set To Debut Jan. 1."
Attorneys Kritika Bharadwaj, Benjamin E. Haglund, Theresa A. Kelly, Naju R. Lathia and Elizabeth J. Sher represented the firm at the South Asian Bar Association of New Jersey (SABA-NJ) 2021 Annual Gala on October 1 at The Marigold in Somerset, NJ.
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This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.