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Filing Window For H-1B Visa Petitions Fast Approaching

Insight & Impact - Labor & Employment Regulatory Newsletter Eric Ledbetter

ISSUE: The U.S. Citizenship & Immigration Services (USCIS) opens the new H-1B filing period on April 2, 2018 for employers who intend to sponsor a first-time H-1B worker during the next federal fiscal year (i.e., October 1, 2018 to September 30, 2019). Given the finite supply of H-1B visas, employers are strongly encouraged to apply on this date to secure their H-1B visas for the upcoming year. This is of particular concern for workers who are currently on F-1 student visas using Optional Practical Training (OPT) work authorization as well as foreign-born employees who have never held H-1B status.

How many visas? USCIS grants 65,000 new H-1B visas per federal fiscal year to employers for positions requiring at least a Bachelor’s degree in a specialty field, of which 6800 visas are reserved for nationals of Chile and Singapore and the remaining 58,200 are available for all nationalities. An additional 20,000 new H-1B visas are also available for employees with Master’s degrees from non-profit U.S. universities or colleges. As in years past, USCIS will almost certainly receive more H-1B petitions than there are available slots during the first few days of the filing window, triggering a random selection process to determine which petitions will be accepted for processing.

  • We recommend that employers canvass their workforce and potential recruitment pool immediately to determine who is likely to need an H-1B status in the upcoming federal fiscal year.

Who does not need to file? It is important to note that the upcoming filing period does not apply to employees who already have H-1B visa status. It also does not apply to “cap-exempt” H-1B employers such as institutions of higher education, nonprofit organizations affiliated with higher education institutes, and nonprofit research organizations.

Physicians with Conrad 30 J-1 waivers are also exempt from the H-1B cap regardless of the nature of their employer. Cap-exempt employers and physicians with waivers may obtain H-1B status at any time during the year.

For those who are unfamiliar with the H-1B program, USCIS grants H-1B visa status in three-year increments, for up to six years, to qualifying foreign workers. The H-1B employee is authorized to work only for the employer that filed the petition. Assignments to offsite work locations and third-party clients are generally not allowed unless the H-1B employer maintains a traditional employment relationship by supervising and controlling the work of the offsite employee. Employers must offer a salary that meets the prevailing wage for the position in the specific geographic area, satisfy certain mandatory notice requirements and abide by all federal, state, and local employment and workplace safety laws.


Read more Insight & Impact from March 2018:


IMPACT:

Since the supply of H-1B visas is finite, demand will likely outstrip the number of available H-1B visas. In order to obtain a new H-1B visa for an employee, employers are strongly encouraged to file their petitions on April 2, 2018 or risk being unable to employ the candidate in the coming year.

For more information on managing specific terms of employment agreements, please contact your local Quarles & Brady attorney or