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Employers are reminded to begin preparing now for H-1B cap season to ensure that their petitions are ready to be filed before the first day of filing, which is April 3, 2017.
While speculation continues about what the Trump administration may do to potentially limit the H-1B visa program, no concrete changes have been proposed at this time that would affect the coming cap season. While employers should leave open the possibility of changes before the start of the filing period, they should prepare to proceed as normal in the meantime.
Volume is expected to be high again this year, due to the usual drivers such as skills shortages, low unemployment and a stronger economy, with the additional uncertainty about the new administration and potential restrictions on H-1B visas in coming years.
As in the past four years, this season’s H-1B cap petitions are likely to be selected by lottery, which occurs when the number of petitions filed in the first week of the filling period exceeds the annual caps. The annual H-1B cap is 65,000 for undergraduate-degree holders, with an additional 20,000 for individuals holding advanced degrees from U.S. educational institutions. Last year, USCIS received nearly 236,000 H-1B petitions for the 85,000 visas available.
With early planning, employers can ensure that they have enough time to complete their petitions well in advance of the first day of filing. Here are a few steps employers should take now:
Employers should assess their workforce needs and identify H-1B candidates who will be subject to the cap. The H-1B cap applies to foreign workers who are seeking new H-1B status, such as newly graduating foreign students in the U.S. or overseas workers who are seeking to start work in the U.S. with H-1B status. The cap does not affect individuals who were counted against the cap during the previous six years or those seeking to extend their H-1B status or change employers.
Employers should work with their recruiters to finalize job offers for potential H-1B employees planning to start work Oct. 1, 2017. Special attention should be given to individuals in the U.S. whose current visa status is due to expire. These may include students in F-1/Optional Practical Training (OPT) status, intracompany transferees on L-1B visas, Australian nationals on E-3 visas, and Canadian and Mexican NAFTA professionals on TN visas.
Employers should send descriptions of the prospective H-1B employee’s position, including job duties and the position’s minimum qualifications, to their BAL attorney as soon as they are complete. Job descriptions are required for the Labor Condition Application for Nonimmigrant Workers (LCA), a prerequisite to the filing of the H-1B petition in which an employer promises to pay at least the prevailing wage for the occupation. While the Labor Department normally takes seven days to certify an LCA, it may take longer depending on the offered salary, prevailing wage and specifics of each case.
Employers and individuals should not leave document collection and preparation to the last minute. In particular, foreign academic transcripts, certificates and other educational documents are among the most time-consuming to prepare because official versions must be obtained, translated and evaluated to show that the candidate has earned the equivalent of at least a U.S. bachelor’s degree. In addition, prospective H-1B candidates who do not have a formal degree must gather and provide evidence of sufficient years of experience so that an official educational equivalency document may be prepared.
Companies are encouraged to explore potential alternatives to the H-1B category with their BAL attorney early in the season to allow enough time to pursue other avenues, such as other visa categories, for workers who do not obtain an H-1B visa. After the close of this cap season, employers must wait until April 2018 to file H-1B cap petitions again.
BAL Analysis: Employers and individuals can maximize their chances of filing within the first week of April by planning early. In addition to the steps listed above, employers should make sure they have budgeted for the higher immigration-related filing fees that take effect Friday.
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