H-1B Update – April 1 Deadline Approaching Fast
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS will begin accepting petitions for Fiscal Year (FY) 2014 H-1B visas from Monday, April 1, 2013. The soonest these visas can be used for work authorization will be October 1, 2013, which is the start of FY 2014.
For FY2012, the H-1B cap was reached on November 22, 2011. For FY 2013, the H-1B cap was reached on June 11, 2012. While it is impossible to predict exactly when the FY2014 H-1B cap will be reached, it may be the case that new H-1B visas will become unavailable sometime in the first few weeks of the filing season, and possible that the quota may be exhausted much sooner than that. Any proposed new H-1B petitions not filed when the quota opens on April 1, 2013 run a high risk of encountering the cap. Given the high level of unpredictability regarding the cap, companies may want to initiate the petition process as soon as foreign workers in need of H-1B sponsorship are identified.
An additional concern is that the sequestration budget cuts may delay the issuance of LCA (Labor Condition Application) documents by the U.S. Department of Labor beyond the normal 5-7 business day processing time. USCIS will normally not accept any H-1B petition that does not contain a certified LCA document confirming the required H-1B salary amount. Given the large volume of LCA documents being filed in the month of March, and the reduced DOL resources applied to adjudicating the applications, any cap subject H-1B petitions should be started within the next 1-2 weeks in order to maximize the Company’s ability to submit a timely filing.
Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by the CIS will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact an immigration attorney regarding any specific employees you may be considering for H-1B status.
Petitions filed with USCIS should not be affected by the sequestration because USCIS is “self funded” through the application and petition filing fees it collects to run its operations. The Department of Labor and the State Department are not funded in that way. Sequestration may result in processing delays in the adjudication of Labor Condition Applications (LCA) documents, a necessary H-1B petition filing prerequisite, and may also delay the processing of PERM labor certification applications, which are often the first step in obtaining lawful permanent residence for sponsored foreign workers. Also, sequestration may result in delays and longer wait times for foreign workers to obtain in-person interviews at consulates abroad, and to obtain a final adjudication of visa stamp applications.
Many interested parties have been hoping for a new and more immigrant friendly immigration law since 1996, when a strict “enforcement only” law was passed. 17 years, many more illegal entries later, and with a significantly longer queue for persons trying to immigrate the lawful way, Congress is actively exploring other possible alternatives. Will this be the year that the wait for lawful immigrants becomes shorter, H-4 spouses become eligible for employment authorization document work cards, and a solution is put in place to normalize the status of the undocumented persons working in the U.S.? Recent efforts by Congressional representatives to find a compromise solution, and lobbying efforts by stake holders including joint efforts made by the U.S. Chamber of Commerce and the AFL-CIO make this a likely year for CIR (Comprehensive Immigration Reform) to finally happen. Nonetheless, the common wisdom is that if a new law is not put in place by the end of this summer, immigration reform will become impossible until after the next mid-term election in the fall of 2014.