Cap-Subject H-1B Petitions for FY 2015 Should Be Filed on March 31, 2014

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2015 begins on Monday, March 31, 2014. U.S. Citizenship and Immigration Services (USCIS) will accept cap-subject H-1B petitions for FY 2015 on Tuesday, April 1, 2014 to request an employment start date of October 1, 2014.

Employers should identify current and future employees who will need H-1B visa status. Individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B from another work status (such as L-1, TN, or E-3), and individuals outside of the United States commonly require new, cap-subject H-1Bs.

The annual limit for new H-1B visas is 65,000 (6,800 of which are set aside for nonimmigrants who are citizens/nationals of Chile or Singapore). In addition to the regular or “Bachelor’s” quota, there are an additional 20,000 H-1B visas available to beneficiaries who, at the time of filing, possess an advanced degree (i.e., a Master’s degree or higher) from a U.S. academic institution.

If the number of petitions received during the first week of April 2014 exceeds the annual quota, a lottery will be conducted. The first lottery will be limited to those applicants who hold an advanced degree from a U.S. academic institution. If an advanced degree petition is not selected in the advanced degree lottery, it will be included in the lottery for the regular quota. In the most recent fiscal year, approximately 124,000 applications, including petitions filed for the advanced degree exemption, were submitted during the filing period.

Given that, in FY 2014, the H-1B cap was met by the first week of the filing period, it is imperative that employers file all new quota-subject H-1B petitions on March 31, 2014. Employers should immediately begin identifying persons for whom H-1B sponsorship will be needed. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA).

The LCA, which is submitted online with the U.S. Department of Labor (DOL), is a prerequisite to a properly-filed H-1B petition. As part of the application, employers attest that they will pay the H-1B worker the higher of the prevailing wage or actual wage (market rate) for that position in the geographic area of intended employment.

The current LCA processing time is approximately 7-10 days, and employers must take this additional processing time into consideration to guarantee the timely approval of the LCA and the ability to file the H-1B petition on March 31, 2014. Therefore, we strongly advise that you contact the Ogletree Deakins attorney with whom you normally work to initiate any new H-1B petitions as early as possible.

Not All H-1B Petitions Are Subject to the Annual Quota

Not all H-1B petitions are subject to the annual limit. The following types of H-1B petitions are exempt from the H-1B cap:

• Petitions filed to extend or amend H-1B employment for foreign workers already in H-1B status; and
• Petitions filed on behalf of new workers to be employed by institutions of higher education or related nonprofit entities, nonprofit research organizations, or governmental research organizations.