So, yes, this is actually what I am thinking about on New Year’s Day. The start of the H-1B filing season is actually upon us. Since Comprehensive Immigration Reform (“CIR”) did not pass in 2013, the Gang of Eight’s plan to raise the H-1B visa cap never came to be (or I’d like to say has not come to be yet). As such, immigration practitioners are once again left to have difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions.
A little primer is in order. An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.” A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States. Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
In order to determine whether a particular position would be considered a specialty occupation, the regulations require that the position must meet one of the following four (4) criteria: (1) a bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common in the industry in parallel positions among similar organizations or, alternatively, that the particular position is so complex or unique that a degree is required; (3) the employer normally requires a degree or its equivalent; or (4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a degree.
The U.S. government operates on a fiscal year basis that begins each year on October 1 and runs through the following September 30. For those employers who wish to hire foreign nationals as H-1B workers, unless the position is exempt, there is an annual cap of 65,000 nonimmigrant visas that are available in each fiscal year (and the additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).
Importantly, the earliest date by which an employer may petition for a prospective H-1B worker is the April 1 preceding the October 1 beginning of the U.S. government’s new fiscal year. Assuming that the offered position is not an exempt position (i.e., a position that is cap exempt), the timing of an employer’s H-1B petition is critical. This is because in recent years the H-1B cap has been reached within days of April 1. Therefore, late filing may cause an employer to miss the opportunity to participate in the H-1B program in a given fiscal year.
Because there are some prerequisites to filing an H-1B petition with USCIS (e.g., obtaining a prevailing wage determination, filing a Labor Condition Application with the U.S. Department of Labor, etc.), now is the time for employers to start thinking about whether they wish to participate in the H-1B visa program.