On April 1, 2014, United States Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa petitions for employment that will begin on October 1, 2014. The H-1B visa is a popular choice for companies that plan to hire a foreign national to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree in a specific field. Candidates for H-1B status include current employees in student status (F-1 or J-1), potential new hires, or employees in a different immigration status (for example, TN or L-1 status).
Congress has placed a numerical "cap" on H-1B visas. For Fiscal Year 2015 (which begins October 1, 2014), the limit is 65,000 cap-subject H-1B visas, with an additional 20,000 visas available for individuals who have earned a master's degree or higher from an accredited U.S. educational institution. Although some exemptions from the cap may be available (principally for institutions of higher education), most employers are subject to the cap. As with last year, we expect the H-1B cap to be reached the first week of April. Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions until April 1, 2015.
Consequently, we advise employers to make H-1B sponsorship decisions within the next few weeks. It is important to prepare H-1B petitions as early as possible—and well before April 1st—so that a complete petition can be submitted to USCIS on the first day the quota opens. USCIS received more than 85,000 H-1B petitions during the first week of April, 2013, and established an H-1B lottery to determine which petitions would be accepted for processing. It is critical that H-1B petitions be received as early as possible so that they are included in the lottery, if one is required.
We strongly advise clients to finalize their H-1B petition decisions by February 28, 2014. Each petition requires a certification by the Department of Labor of a Labor Condition Application, which currently takes approximately seven days for issuance. As we draw closer to April 1st, we anticipate that these certifications will take longer to obtain. It is therefore important to begin work on new H-1B petitions as soon as possible.
Reminder: Changes to Form I-94 Arrival/Departure Record Issuance
On April 30, 2013, U.S. Customs & Border Protection (CBP) ended its issuance of paper Form I-94 Arrival/Departure Records (Form I-94) for most visitors. A CBP officer will stamp the travel document (passport) of each arriving visitor, showing the date of admission, class of admission, and the date on which the admission expires. If a visitor does not receive a paper Form I-94 and needs one to demonstrate their lawful immigration status, they will be required to access their arrival information online and print their own Form I-94. A paper copy of Form I-94 is required to begin employment, apply for a Social Security Number, obtain a driver’s license or identification document and change or extend nonimmigrant visa status in the United States.
To obtain a paper Form I-94 record to verify immigration status or employment authorization, the visitor must visit the CBP's website. Visitors will enter information from their passport and itinerary, and should then be able to print their own Form I-94.
Please note that if you plan to apply for H-1B status for any employee or prospective employee currently in the United States under another visa category, the individual must go to the website and print his or her Form I-94 for the employer to use when filing the H-1B petition.
Please contact a member of the Vedder Price Immigration practice group, or any other Vedder Price attorney with whom you have worked, as soon as you have identified your H-1B candidate, or for any information regarding the H-1B category or other immigration issues.
If you have any questions, please contact Gabrielle M. Buckley at +1 (312) 609 7626, Sara B. DeBlaze at +1 (312) 609 7534, or Bradley A. Richards at +1 (312) 609 7711.