It is that time of year again! We always hear the accountants moan and groan about the approaching April 15th deadline each year but, you have to listen a bit more closely and you will hear (and see) the U.S. business immigration lawyers and attorneys manifesting their distaste for the April 1st filing date for “cap” subject H-1B professional and specialty occupation workers.

Well, here we go again . . .

On April 1st, 2014 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (“DOL”) for and Labor Condition Application (“LCA”) and Petition to the U.S. Citizenship and Immigration Services (“CIS”) for H-1B visa petitions for employment in the fiscal 2014 – 2015 year (“FY 2014”). Our advice to our H-1B employer clients continues to be that they need to think about filing H-1B petitions on (or very close to) April 1st for new and existing employees who will be eligible for a first-time H-1B visa to begin their employment on or after October 1st, 2014.

Each Fiscal Year, Congress has mandated an annual cap of 65,000 H-1B visas for “professional and specialty occupation workers” who possess the equivalence of a U.S. Bachelor’s Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the equivalence of a U.S. Master’s Degree or other advanced degrees from U.S. Colleges or Universities. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are not included in the annual cap established by Congress. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. This reduces the total allotment of H-1B visas available each fiscal year to 58,200.

For many years, our office assisted students who had to deal with the “cap-gap” issue. Now this is less of an issue if the H-1B is filed before the work authorization of the student expires. We also assist employers with E-Verify applications so that they can offer international students a 17 month STEM extension. E-Verify registration is relatively easy to do and seems also be the “wave of the future” with regard to the employment verification process in the U.S.

In 2008 there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B in their OPT period. In 2008, a regulation was promulgated that provided “cap-gap” relief for F-1 students with pending H-1B petitions. For example, F-1 student visa holders who received work authorization in Optional Practical Training (OPT) were permitted to extend the authorized period of stay and work authorization as long as they have received approved H-1B visas prior to the expiration of the OPT. Also, many Science, Technology, Engineering and Mathematics (“STEM”) students continue to use the STEM extension as a way to have the time they need to petition in the next appropriate H-1B cycle. However, and as previously stated, to get the STEM extension, the employer needs to be enrolled in E-Verify.

For the fiscal years 2009, 2010 and 2011, the H-1B allotment actually lasted for almost eight to nine months. In 2012, the H-1B allocation lasted until November. This year (2013) the H-1B allotment was exhausted in a matter of three to five (3 – 5) days of the H-1B visas becoming available. This required the CIS to conduct a “lottery”. As a result, not all H-1Bs were accepted for processing by the USCIS (formerly, the INS). The demand for H-1B visas this fiscal year may be greater than it was for last year. We keep hearing that “economic recovery” is happening. For this reason, we continue to advise our H-1B employer clients and H-1B beneficiary hopefuls to consider filing on March 31st, or as soon thereafter as possible.

For any additional information about the 2014 – 20