H-1B Filing Season to Begin April 1, 2015

Immigration regulations permit the filing of an H-1B petition as early as six months before the intended start date of the employment. Therefore, it will be possible to file H-1B petitions seeking an October 1, 2015 start date for “new” petitions on April 1.

It is not too soon to begin preparation of an H-1B petition. Job descriptions and requirements have to be carefully drafted before a Prevailing Wage Determination is sought. The Department of Labor may experience delays in processing the required Labor Condition Application. Organizations that provide wage surveys (where required) or educational evaluations may become backlogged.

If you are considering retaining our office to assist with an H-1B petition, please contact Melissa Glassbrenner (melissaf@costariccio.com) or one of our attorneys as soon as possible.

As before, there are 65,000 H-1B numbers available each year, plus an additional 20,000 for applicants who possess a Masters Degree from a U.S. university.

Last year, numbers remained available only until April 5. We expect an increase in demand this year.

Filing early in April is strongly encouraged in the following situation:

• The applicant is currently working for the employer in student (F-1 OPT) status;

• The OPT employment authorization will expire before October 1;

• The employer is confident of its desire to retain the nonimmigrant worker without interruption beyond the expiration of the OPT status; and

• The applicant is a highly skilled worker who may consider an offer from a competitor who is willing to proceed with an H-1B petition without delay.

Once the new numbers are gone, it will no longer be possible to obtain “new” H-1B status prior to October 1, 2015 unless one of the following exceptions apply.

• The foreign national is currently employed by the petitioner in H-1B status and is eligible for a extension of stay.

• “New” employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition will require a number under the cap and will not be approvable when the numbers run out!].

• “New” employees for a private employer who would normally be subject to the “cap” but who will be employed “at” (on the physical premises of) an exempt employer as described below.

• “New” employees currently employed in H-1B status with an exempt employer as described below who will continue in that exempt employment and who are seeking concurrent, part-time employment with an otherwise cap-subject employer.

• Petitions on behalf of citizens of Chile and Singapore (those numbers remain current even now for the current fiscal year!)

The following organizations are exempt from the “cap” and may continue to obtain H-1B status for new employees:

• institutions of higher education

• a nonprofit organization related to or affiliated with an institution of higher education. Caution: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education. During the past year we’ve observed that the Immigration Service has taken a stricter view of what constitutes “affiliation” for this purpose.

• a nonprofit research organization or governmental research organization

Reminder: for existing H-1B workers, employers MUST file an amended petition in order to maintain the worker’s lawful status BEFORE a material change occurs such as:

• A significant change in job duties (e.g. a promotion), or
• A move to a new worksite.

Alternatives to the H-1B

The eventual shortage of H-1B visa numbers will require a closer look at other visa alternatives. Briefly, these include:

• TN visa status for citizens of Canada or Mexico (now available in increments of three years)

• L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year in a qualifying capacity

• E-3 visa status for citizens of Australia

• J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)

• J-1 status through third party sponsors where the goal of the employer is to train the visa applicant

• O-1 visa status for aliens of extraordinary ability

• E-1 (Treaty Trader) and E-2 (Treaty Investor) for citizens of countries having the appropriate treaty with the US.

Further details about these options may be found on our web site at www.costariccio.com.

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

• An alien whose spouse is applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”

• An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver

• An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.

Please feel free to contact us if you have any questions.