The annual day to file applications for new H-1B employees is approaching, on April 1st. So, it is time to survey potential new hires and current employees in other immigration categories to identify who will need H-1B visa’s, and start preparing those H-1B applications. Normally, employers consider applying for H-1B’s for new employees and those in F-1 OPT/CPT status and J-1 status. But, this year, in addition to those employees, given the proposals to eliminate H-4 EAD’s and the ongoing NAFTA negotiations, employers should strongly consider applying for H-1B’s for their employees working in TN and H-4 EAD status.
Who Is and Is Not Subject to the H-1B Quota
The US Citizenship and Immigration Service (USCIS) generally only issues 65,000 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. It accepts applications for these quota-subject H-1B’s on April 1st, and the earliest employment start date you can request is October 1st. There are several categories of H-1B employees who are not subject to these quotas or timelines, including: (1) current H-1B’s who are applying to extend their expiration dates, (2) current H-1B’s who are applying to change employers, and (3) employees who will work for an institution of higher education. Employers can submit H-1B applications for these quota-exempt employees any time, requesting any employment start date.
Timing & Impact of H-1B Applications
Employers can file cap-subject H-1B petitions on April 1st every year. Last year, the Government received more than twice as many applications as H-1B quota slots during the first week of April. So, more than half of the H-1B applications were rejected and returned, with their filing fee checks, leaving employers and employees in a difficult position – either find a creative immigration solution or the employee (and likely his/her family) would have to leave the U.S. Most likely, we will see similar application numbers this year. Thus, it is safest to apply for new H-1B’s on April 1st. Once the cap is reached, there will be no more new H-1B’s issued until October 1, 2019.
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 (to start on October 1st or later), or (2) apply for an H-1B for a current or prospective employee in the US in another non-immigrant status (such as TN, H-4 EAD, F-1 OPT, J-1, 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.
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. ©2018. Posternak Blankstein & Lund LLP. All rights reserved.