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H-1B Filing Deadline Is Approaching - Time to Determine H-1B Needs

Berin Romagnolo February 3, 2015

The H-1B work visa is the most common work visa for foreign professionals, and there is only one time this year to apply for it – on April 1st.  That time is approaching – so it’s time for employers to survey their H-1B needs and start preparing to file their H-1B applications.  If this April 1st filing deadline is missed, then employers will have to wait an entire year, until next April 1st, before they can apply for a new H-1B work visa for their employees, thereby potentially causing employers to lose valuable employees. 

Who Is, and Is Not, Subject to the H-1B Quota 

The US Citizenship and Immigration Service (USCIS) generally only issues 65,000 new H-1B visas per year, plus an additional 20,000 H-1B's for those with at least a Master’s Degree from a U.S. institution.  Generally, this quota only applies to foreign nationals who are receiving their initial H-1B visas.  Typically, the H-1B quota applies to foreign nationals in other visa categories (ex: F-1 OPT's, TN's, J-1’s, and L-1's) who want to switch to H-1B status, and to workers living abroad who want to come to the U.S. to work in H-1B status.  The quota does not apply to: (1) current H-1B employees who are applying to extend their expiration dates, (2) current H-1B employees who are applying to change employers, and (3) employees who will work for an institution of higher education.    

Timing & Impact of H-1B Applications

There are a couple of important timing issues to consider.  Employers can file cap-subject H-1B petitions on April 1st every year.  Recently, the Government has been receiving at least twice as many applications as H-1B quota slots during the first week of April.  So, at least half of the H-1B applications are being rejected and returned, leaving employers and employees in a difficult position - either find a different work visa category for that employee or else the employee (and likely his/her family) will have to leave the U.S.  Second, although applications are filed on April 1st, October 1st is the earliest employment start date employers can request on quota-subject H-1B applications. So, it is important to determine when the employee’s current work authorization expires to ensure that there is continuous work authorization through October 1st.     

Next Steps for Employers

Employers should assess their current and future staffing needs to determine if they will need to either: (1) apply for an initial H-1B for a new hire, or (2)  apply for an H-1B for a current or prospective employee in the US in another non-immigrant status (such as TN, F-1 OPT, J-1, EAD, or L-1 status).  Contact your immigration counsel with any questions and to get started on the new H-1B needs.  

If you have any questions or need additional information regarding this, please contact Berin S. Romagnolo in our Immigration Group.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2015 Posternak Blankstein & Lund LLP.  All rights reserved.



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