201603011448598896By Attorneys Devin M. Connolly & Nancy E. Miller

The U.S. Citizenship and Immigration Service (CIS) will being accepting H-1B petitions for Fiscal Year 2017 on April 1, 2016. It is vitally important to file the petition exactly on April 1st.  If not, as discussed below, you risk the H-1B cap being met before you even submit your petition.  A well-prepared, approvable petition takes time to prepare. Therefore, now is the time to begin preparing your H-1B petition.

The H-1B visa allows U.S. employers to hire foreign workers to work in “specialty occupations.”  A “specialty occupation” is an occupation that requires the theoretical or practical application of a body of highly specialized knowledge. More commonly, a “specialty occupation” is an occupation that typically requires a Bachelor’s degree for entry into the field. Examples of “specialty occupations” include teachers, engineers, accountants, computer programmers and scientists. Occupations that qualify for an H-1B visa require a significant amount of education and training.

The H-1B petitioner is the employer. Though an employee will benefit greatly from an approved petition by being granted the opportunity work in the U.S., they are not permitted to formally make the request before CIS. As part of the petition, the employer must demonstrate not only that the position qualifies as a “specialty occupation” as discussed above, but that the foreign national is qualified to perform the occupation. This requires the employer to show that the prospective worker has the required education. The foreign national must have previously earned a Bachelor’s degree from an accredited college or university. It is acceptable for the Bachelor’s degree to have been acquired in a foreign country, as long as the employer can demonstrate that it is equivalent to a Bachelor’s degree awarded by a college or university in the U.S. That determination must be made by a qualified evaluator.

In addition, the employer must show that the Bachelor’s degree is in a subject that is related to the H1-B occupation. For example, a Bachelor’s degree in Philosophy would not qualify one for a job as a computer programmer. While a computer programmer is likely a qualified “specialty occupation,” a Bachelor’s degree in Philosophy does not provide the education and training needed to perform that job. Therefore, it does not meet the sufficiently-related requirement.

If the foreign national has not yet earned a Bachelor’s degree, it is possible for them to qualify through their long-term employment experience in the occupation. Three years of professional experience is considered equivalent to one year of college of university education.

Assuming we have a “specialty occupation” and a qualified foreign national, we must be concerned with the H-1B cap.  The H-1B program is limited to 65,000 new H-1B visas per year. There are also an additional 20,000 visas available for foreign nationals who have earned a Master’s degree or higher from a university in the U.S. These limits have been set by Congress. Recent past history has shown that there are far more than 65,000 petitions being filed each year. In fact, in 2015 there were approximately 233,000 petitions filed for the 65,000 visas available for Fiscal Year 2016.

Due to this high demand of H-1B visas, it is crucial that the petition is filed on April 1, 2016.  Submitting it after that date may cause your petition to be rejected entirely simply because the cap may have already been met.

Unfortunately submitting your petition on April 1st does not guarantee that it will be accepted. If CIS receives more petitions than there are available H1-B visas (as is most probable), it will conduct what is referred to as the “H-1B lottery.”  Under this system, CIS selects a sufficient number of petitions to be reviewed and rejects the others.  The rejected petitions are returned – unread – to the petitioner. If the cap is reached on the first day of filing (as has been the case for the past several years), all petitions received by CIS after that date are rejected and returned to the petitioner. Therefore, in order to have a chance at having CIS review and adjudicate the petition, it must be received by CIS on April 1.

It is time to start preparing H-1B petitions. The first (and maybe only) day to file will be here very soon. Failure to timely file can doom your chances of being granted the opportunity to lawfully work in the U.S. Do not let that happen to you – contact an experienced and knowledgeable attorney who is dedicated solely to the practice of immigration law to prepare your H1-B petition and increase your opportunity for success.

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