By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq.
As a reminder to all U.S. employers, H-1B season is almost here! United States Citizenship & Immigration Services (“USCIS”) will start accepting new H-1B petitions for fiscal year 2017 on Friday, April 1st, 2016. As the filing date rapidly approaches, prospective H-1B employers should start to identify current and future employees who will require sponsorship for new H-1B petitions. Also, H-1B employers will want to start considering a back-up plan for those H-1B candidates that do not “win the lottery”.
The statute provides for an annual quota of 65,000 (for beneficiaries holding a U.S. Bachelors degree or its U.S. equivalent) H-1B visas that can be issued in any given fiscal year, which runs from October 1st to September 30th. However, all H-1B nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the Nationals of Chile and Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal year.
Thus, in effect, only 58,200 H-1B visas are granted each year plus the additional 20,000 H-1B visas which are reserved for individuals who have received a master’s degrees or higher from a U.S. college or university. In another upcoming article, we will discuss, in detail, whether or not every master’s degree from a U.S. academic institution would qualify an individual for the H-1B master’s cap. Thus, there is a total of 78,200 H-1B nonimmigrant visas which are subject to the annual cap.
Last year, within the first week of filing, USCIS received nearly 233,000 H-1B petitions, including petitions filed for the advanced degree exemption. Because the annual quota was met within days of the first day of filing, on April 13, 2016, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the general-category cap and the 20,000 cap under the advanced degree exemption. As such, only those petitions selected in the random lottery were able to proceed to adjudication. We anticipate the same or even higher level of H-1B visa petitions for this upcoming H-1B filing season.
As a result of the lottery process, many prospective H-1B employers and foreign national applicants are reaching out to our Law Office’s immigration attorneys with a variety of question about the H-1B nonimmigrant visa and the process for filing these visas. One question that we are frequently asked is “Can an employer submit multiple H-1B cap-subject petitions during one Fiscal Year? This strategy is sometimes referred to in the parlance as “multiple or duplicative H-1B visa filings”. According to the USCIS guidelines, an employer may not file more than one H-1B petition for each prospective employee during the fiscal year.
Therefore, a prospective employee who qualifies for the “Master’s Cap” of 20,000 cannot file two (2) petitions to encompass the regular H-1B and the Master’s H-1B. The limitation also precludes an employer from filing multiple petitions for different jobs for the same employee but does not preclude related employers (e.g., parent and subsidiary companies or affiliates) from filing petitions for the same beneficiary. However, the employer must demonstrate a legitimate business need to do so and if it fails to meet that burden, all petitions on behalf of the beneficiary will be denied or revoked.
In addition, it is important for prospective H-1B employers to understand that, in some circumstances, multiple H-1B visa petition filings are permitted if the H-1B application is submitted for the same foreign national by different employers so long as there is an “authentic and actual business need” for each such petition.
Since H-1B petitions are likely to be subjected to a random computerized lottery sy