Plan In Advance of April 2015 for Most H-1B Visa Petitions in Calendar Year 2015

Employers and foreign national-employees who are considering filing H-1B visa petitions in calendar year 2015 should begin their planning for the 2016 fiscal year H-1B visa lottery. (H-1B petitions are issued based on the federal government fiscal year of October 1 2015 through September 30, 2016.) For cap-subject H-1B employers, the H-1B petition cannot be submitted before April 1, 2015 for employment intended to begin on or after October 1, 2015. H-1B visas are employer-petitioned, the employee cannot submit an H-1B visa petition.

Starting on April 1, 2015, individuals will be able to try and submit their petitions into the H-1B lottery, where a Cap of 65,000 visas will be allotted for those with a Bachelor’s degree education or higher, and an additional Cap of 20,000 visas will be set aside for individuals who have earned at least a Master’s degree or higher from a qualifying, public or not-for-profit U.S. institution of higher education.   The petitions chosen for adjudication will be randomly selected from among all of the H-1B petitions filed with USCIS during the first five business days in April.  In last year’s H-1B lottery (April 2014 for fiscal year 2015), over 172,000 petitions were submitted to USCIS during the brief 5-day filing window.  All indications point to a similar situation this year, so it is most important that H-1B petitions are perfectly in order and ready for delivery to USCIS on April 1st (2015).

USCIS has released helpful H-1B petition filing tips to assist individuals in avoiding petition rejection, as well as the issuance of tricky and complicated Requests for Additional Evidence (RFEs). 

To start, it is essential that individuals understand whether or not they even qualify for an H-1B visa, which is meant for those with U.S. job offers in “specialty occupations,” i.e., that require at least a Bachelor’s degree to undertake.  Both the job position must be eligible for H-1B visa classification, and the foreign national employee-beneficiary must be eligible for the H-1B visa. For a general overview of the H-1B visa classification visit my firms’ website.

However, it is also important to identify whether an individual is even subject to one of the H-1B visa Caps listed above; and if so, whether it is the Bachelor’s Cap, or the U.S. Master’s Cap.  For instance, certain employers, including universities and nonprofit and government research institutions, are not subject to either H-1B cap. Moreover, some U.S. Master’s degrees may not qualify an individual for the U.S. Master’s Cap if the institution of higher education that issued the degree is private and/or for-profit.  These issues can often involve nuanced and complex questions that can best be addressed by an experienced immigration attorney.

Once it is determined that an individual is qualified for an H-1B visa, and whether or not is subject to one of the Caps mentioned above, the employer must obtain verification that the wage being paid to the employee-beneficiary meets the H-1B wage paid its other employees in the same position and the "prevailing wage" paid other workers in the geographic area. The employer must file and receive a certification from the Department of Labor of a Labor Condition Application (LCA). The H-1B petition cannot be submitted, generally, without a certified LCA.

It is important that the H-1B petition be submitted without any errors that might cause USCIS to reject it from participation in the H-1B lottery.  Common mistakes made in H-1B filings are often seemingly small, clerical, or technical errors – but such errors can be disastrous – causing USCIS to reject the petition all together.  For instance, a signature may be missing, a wrong box may be checked, a filing fee check may be dated incorrectly, or the wrong letter was typed into the form somewhere. If the petition is rejected due to oversight—or for any reason—it can be fatal, as the H-1B filing window is only guaranteed to be open for five business days.  By the time you receive the rejected petition back from USCIS, it will likely be too late to re-file; thus your petition will miss its chance to be selected in this year’s H-1B lottery.  Accordingly, early preparation and attention to detail are essential for successfully securing your place in the H-1B lottery.

If you have any questions about the H-1B Cap system, the H-1B lottery, or the H-1B petition process in general, the experienced H-1B attorney at Goulder immigration Law Firm can help you navigate the complicated H-1B process, and many other immigration processes.