USCIS Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision

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 also hear (and see) the U.S. business immigration lawyers and attorneys manifesting their distaste for the April 1st deadline (filing date) for “cap” subject H-1B professional and specialty occupation worker visas.

Well, here we go again . . .

As many HR Managers and Professionals are aware, April 1st, 2015 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 an Labor Condition Application (“LCA”) and Petition to the U.S. Citizenship and Immigration Services (“CIS”) for H-1B nonimmigrant visa petitions for employment in the fiscal 2015 – 2016 year (“FY 2015”). Our ongoing 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, 2015.

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 work 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 decades, our immigration and nationality lawyers have assisted students who had to deal with the “cap-gap” issue. Now this is less of an issue with a gap if the H-1B is filed before the OPT work authorization of the student expires. We also assist employers with E-Verify applications so that they can offer international students the 17 month OPT 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 their 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 extend the time they need to petition in the next appropriate H-1B cycle. President Obama also recently announced potential modifications to the STEM OPT Program that may enhance the categories for STEM extensions and to possibly provide a longer STEM extension. We await further guidance from the USCIS in this regard. However, and as previously stated, to get the STEM OPT extension, an employer needs to be enrolled in the E-Verify Program.

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. As in 2013, this past year (2014), the H-1B allotment was exhausted in a matter of three to five (3 – 5) days of the H-1B visas becoming available on April 1st. 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 is likely to be greater than it was last year. We keep hearing that “economic recovery” is happening. The stock market continues to be strong and Companies continue to add to staff and to grow. 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 2015 – 2016 “H-1B Season” or the H-1B work visa, please feel free to contact our offices at 201-670-0006 (x107). The immigration and nationality lawyers and attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group P.C. stand ready to assist you, your friends or your family with any and all of your immigration law needs in the U.S. and/or in Canada. Please feel free to contact our offices by e-mail at or you can call us at 201-670-0006 (x107).

For your convenience, we have offices in New Jersey, New York and in Indiana. We also have Canadian Lawyers on our staff to assist you with transfers to Canada and we have an affiliated office in Mumbai and Gujarat in India.