Musings on Immigration

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The H-1B Cap Season is Here, Get Your Case Prepared Early

We are rapidly approaching that time of year when the scramble for the coveted H-1B visa begins.  As a reminder, the H-1B visa is the only work visa available to most foreign workers.  It requires that the person have a U.S. Employer, a position with that employer that requires a specific bachelor’s level (or higher) education (a professional position), and that the person being applied for actually have that specific bachelor’s level (or higher) degree. Every year, Congress has limited the number of new H-1B visas for bachelor’s degree holders to 65,000, with an additional 20,000 H-1B visas available to those whose job requires a Master’s degree, or higher.  In 2013, USCIS received more than 124,000 applications for the 85,000 H-1B slots.  USCIS held a “lottery” for both the master’s degree and bachelor’s degree H-1B categories.  Initially at least, whether you received your H-1B was entirely based on luck in 2013.  It will be the same in 2014. 
If you want to hire a foreign professional worker in the U.S. this year (starting on October 1, 2014), now is the time to get ready and act.  Typically, it will take 3-4 weeks to prepare the H-1B visa package, because of government processing delays prior to the filing of the H-1B.  Now is the time to select qualified immigration counsel who has handled thousands of H-1Bs in all categories of  professional jobs and has the experience to both timely prepare the application, and to prepare a winnable application.  The denial rate for H-1Bs has averaged more than 30% between 2009 and 2011, the last years for which we have numbers.
Because of the recent upsurge in private sector job growth, it is crystal clear that there will be an even greater number of H-1B petitions filed in April 2014, compared to 2013, and that the “cap” will again be reached in the first 5 days of April.  After the lottery process selects the winners by mid-April (and the losers are unceremoniously notified by the return of their entire application), the USCIS will then adjudicate the cases in random order, with non-premium processing times exceeding five months. 
To maximize your and your employee’s chances of obtaining one of the newly available H-1B visas, employers should plan to file their H-1B petitions long before April 1, 2014.  If you don’t know whether you will have H-1B needs in 2014, or whether any of your employees may need to file for this visa (such as those on OPT, J-1, or other non-immigrant categories which are reaching their time cap), you should seek guidance from experienced immigration counsel as soon as possible, and certainly several weeks before April 1.  

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