March Madness – It Isn’t All Fun and Games!

Posted by Debra DowdMar 05, 20160 Comments

The mention of March Madness brings to mind a joyous frenzy of basketball predictions, odds and good-hearted banter. To immigration lawyers, HR Staff, Recruiters and highly skilled workers, March Madness entails a systematic, yet frenzied, unpredictable approach to the hiring of and employment of those highly-skilled workers. Bring on the H-1B March Madness.

The H-1B Visa

The H-1B visa is an employer-sponsored visa for international workers hired to work in a “specialty occupation.” A specialty occupation is an occupation for which the minimum hiring requirement is at least a bachelor's degree in a field of study related to the job position.

To qualify for H-1B treatment the H-1B petition package must establish the following:

  • The job position is a specialty occupation in that the normal, industry standard, minimum hiring requirement for the job position is at least a Bachelor's Degree in a field of study related to the job;
  • The international worker possesses such a degree or the equivalent of such a degree – equivalency can be established via a combination of education, work experience and/or training; and
  • The international worker will be paid the higher of the prevailing wage or the actual wage for the job position in the subject geographic region.

The H-1B Cap

Each fiscal year a new batch of 85,000 H-1B visas becomes available – referred to as the “H-1B Cap.” The H-1B Cap is broken down into a Master's Cap of 20,000 visas for those international workers holding a U.S. Master's Degree and 65,000 for all other international workers.

The H-1B Process

To process the H-1B petition we must gather information and documentation from both the sponsoring employer and the sponsored international worker. We review the data/documentation to determine whether the data/documentation supports the H-1B criteria listed above. If yes, we then file with the U.S. Department of Labor a Labor Condition Application to confirm the offered wage, draft the H-1B petition package, circulate the package for review and signature by the employer representative, and prepare the package for shipment to the United States Citizenship and Immigration Service (USCIS).

This year, we will hold all completed H-1B packages until our scheduled ship date of March 31, 2016. On that date we will ship all of the packages to the USCIS utilizing overnight delivery service to ensure delivery to the USCIS on April 1st. The actual H-1B filing window will be open for at least the first 5 business days of April.

The H-1B Season

The federal government's fiscal year begins October 1st. One may apply for an H-1B visa up to six months in advance of the intended employment start date. Hence, the first day of April marks “opening day” the H-1B season each year.

On April 1st each year the USCIS begins accepting H-1B petitions for review and processing. Once the USCIS has received a sufficient number of petitions to reach the Master's Cap and the Regular Cap, it will stop accepting cap-subject H-1B petitions.

During slower economic times, the H-1B Cap may not be reached for several months. During stronger economic times, the H-1B Cap can be reached in one day. In order to instill a sense of “fairness” into the intake process, the USCIS accept H-1B petitions for the first five business days of April. If the Caps are reached, all H-1B petitions received during the referenced five day period will be part of the H-1B lottery.

The H-1B Lottery

The H-1B Lottery is, literally, a computer-generated lottery held by the USCIS to dole out 85,000 H-1B Visas for the 2017 fiscal year. There are two separate lotteries conducted – one for the Master's Cap and then a second for the Regular Cap. For example, if one files a Master's Cap case, it will be part of the Master's Cap lottery. If the case is not accepted in the Master's Cap lottery it will fall into the Regular Cap lottery – thus giving that single case two chances of acceptance in the lottery process. A non-Master's Cap case will be run only through the Regular Cap.

For the 2016 fiscal year, the USCIS received nearly 233,000 H-1B petitions during the filing period (first five business days in April 2015). Thus, a filed H-1B petition had approximately a 1 in 3 chance of being accepted in the lottery.

If a case is not selected in the Lottery, the USCIS will reject (not deny) and return the petition package, together with the filing fee checks.

Cap Exempt Employers

Certain employers are considered Cap-Exempt – they are not subject to the H-1B Caps/Lottery. Cap-exempt employers may file H-1Bs year-round without regard to H-1B availability. Cap-exempt employers include:

• an institution of higher education as defined in the Higher Education Act of 1965

• nonprofit organization or entity related to or affiliated with an institution of higher education

• a nonprofit research organization or a governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)(C)

• a private, for-profit employer who will employ the beneficiary to perform job duties at a qualifying institution (see above) that directly and predominately furthers the normal, primary, or essential purpose, mission, objectives, or function of the qualifying institution, namely higher education or nonprofit or government research

Counted H-1B Workers

If an H-1B holder has been counted in the H-1B Cap, he or she need not worry about the lottery for H-1B extensions, H-1B transfers or even new H-1B status (filed within six years of having been counted).

Jumping Into March Madness

If you need an H-1B petition filed on April 1st, you need to get the process started NOW. Contact your immigration counsel or give us a call. If we are not your immigration counsel we would love the opportunity to show you why we should be!