News & Resources

Publications & Media

New Window for Filing H-1B Visa Petitions Fast Approaching

Immigration Law Alert Eric D. Ledbetter, Grant Sovern, Lisa D. Duran, Otto W. Immel

The new H-1B filing period is fast approaching for employers who intend to sponsor a first-time H-1B worker during the next federal fiscal year (i.e., October 1, 2013 to September 30, 2014). The U.S. Citizenship & Immigration Services (USCIS) will begin accepting new H-1B petitions on April 1, 2013. Employers are strongly encouraged to apply by 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 OPT work authorization as well as employees who have never held H-1B status.

USCIS grants 65,000 new H-1B visas per federal fiscal year to employers who hire for positions that require at least a bachelor's degree in a specialty field. An additional 20,000 new H-1B visas are available for employees with master's degrees from U.S. universities or colleges. Although this places advanced-degree H-1B professionals in a slightly advantageous position, employers are still strongly encouraged to apply on April 1, 2013 to increase the likelihood of securing a visa before they are all claimed. Because April 1 falls on a Monday this year, employers must be prepared to submit their applications by Friday March 29, 2013.

As in years past, USCIS could receive more H-1B petitions than 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. In order to obtain a new H-1B visa for an employee, employers are strongly encouraged to file their petitions by April 1, 2013 or risk being unable to employ the candidate in the coming year. 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.

It is important to note that the upcoming filing period does not apply to employees who already have H-1B visa status either with their current employer or with a previous employer. 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. However, following recent USCIS decisions on nonprofits affiliated with universities, organizations may have a tougher time proving that an affiliation qualifies for H-1B purposes unless USCIS has specifically made a favorable determination on this issue in the past. 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, without regard to the annual H-1B cap. If you are not certain whether a first-time H-1B visa is needed, you should contact an immigration attorney immediately.

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 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. Quarles & Brady's attorneys can assist in determining whether the H-1B visa will help you meet your business goals.

For additional information, please call your Quarles & Brady attorney or contact one of the following attorneys who can assist with immigration issues: Eric Ledbetter at (312) 715-5018 / [email protected]Grant Sovern at (608) 283-2668 / [email protected], Lisa Duran at (602) 229-5225 / [email protected] or Otto Immel at (239) 659-5041 / [email protected].