Spring 2017 is just around the corner, and now is the time to start preparing for H-1B filing season, which begins on April 1. Our office would like to remind Human Resources personnel that they should make determinations about hiring, with H-1B eligible persons in mind. It is crucial to make plans with counsel to ensure that all information is gathered before the April 1 filing period.
The H-1B program allows employers to hire foreign nationals with the minimum of a Bachelor’s degree to work in specialty occupations for which a specialized body of knowledge is required.
H-1B visas are subject to an annual quota of 65,000 visas. An additional 20,000 visas are available for advanced degree graduates. The filing period for H-1B visas begins on April 1 for a start date of October 1, 2017. Last year, USCIS received over 236,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. This means that employers should also be prepared for the next steps in the event that a petition is not accepted.
Keep in mind that the Labor Condition Application (“LCA”) must be filed and certified by the Department of Labor in advance of the H-1B petition. The current processing time to obtain a certified LCA is seven (7) days. This length of time may increase due to the overwhelming amount of LCA determinations requested, and the DOL system may be inaccessible due to increased usage. For this reason, our office suggests filing the LCA as soon as possible.
Employers should bear in mind that certain employees, such as those working pursuant to OPT status, may be good candidates for the upcoming H-1B filing period. Often these individuals’ OPT status will expire before an anticipated October 1 start date, but there is a “cap gap” remedy for individuals who have an H-1B petition filed on their behalf and accepted by USCIS. This extends the period of work authorization until the requested start date on the petition. For those candidates employed in Science, Technology, Engineering, or Mathematics (STEM) fields, there is an option for OPT extension for 17 months. Even for those employees who have the option to extend their OPT period beyond the October 1 filing period, it is advisable that these candidates are considered for this year’s H-1B filing period in the event that they are not selected in the lottery for the following year.
Additionally, employers who have employees working pursuant to TN nonimmigrant status under the North American Free Trade Agreement (“NAFTA”) may want to consider the H-1B visa or other nonimmigrant work-authorized options. The newly elected administration may bring changes to NAFTA, which may include the elimination of the TN visa.
In the event that your employee is not selected for the H-1B lottery, you may want to explore other options. Please contact our office for assistance at 856-222-0130.