by Elaine Young
It’s that time of year again, when employers that want to hire recent college graduates and other professionals begin to file H-1B visa petitions. The first possible start date for most H-1B employees is the first day of the federal fiscal year, October 1. Because U.S. Citizenship and Immigration Services (USCIS) accepts petitions up to six months before an employee’s start date, it will begin receiving H-1B petitions on April 1. Here’s an overview of what to consider before the deadline and some information about how the H-1B process may change in the future. 
Limited number of visas available. Congress has set a cap of 65,000 H-1B visas per year. The first 20,000 foreign nationals who have earned a master’s degree or higher from an American university are exempt from the cap under the “advanced degree” exemption. There are additional set- asides and exemptions for other groups, including workers who (1) qualify under the U.S. free-trade agreements with Singapore and Chile; (2) work at certain nonprofit research organizations and institutions of higher education; or (3) have worked under H-1B status within the past six years. For everyone else subject to the cap, it’s very important to file an H-1B petition on April 1 or as soon as possible afterward. According to the USCIS website, last year, the cap was reached in the first week.
H-1B is a temporary visa. An H-1B visa is a nonimmigrant visa, so it’s not a green card. It’s valid for three years and can be extended for an additional three years. Employees who need to stay longer than six years generally need to apply for a green card. Also, H-1B visas are employer-specific, so a foreign national can work only for the employer that sponsors her.
Does your employee qualify? H-1B immigration status is intended for foreign nationals working for a U.S. employer in a “specialty occupation.” USCIS defines “specialty occupation” as one in which (1) a bachelor’s degree or higher normally is a minimum job requirement for the petitioning employer or the industry as a whole or (2) the job is complex or unique enough that it can be performed only by an individual with a degree.
A textbook case of an H-1B worker would be an engineer with an engineering degree. Note that employers can sponsor only individuals with whom they will have a true employer-employee relationship. USCIS has sharply increased its scrutiny of the employer-employee relationship in the past five years, especially for petitioners in the IT consulting industry.
Wages and hours. H-1B petitioners must pay at least the prevailing wage for the occupation in the intended geographic area of employment as determined by the U.S. Department of Labor (DOL). Companies can file petitions for part-time or full-time work, and employees can hold two or more concurrent H-1B petitions for different employers.
Basic steps. Before filing an H-1B petition on April 1, the petitioning employer must file a labor condition application (LCA) with the DOL. Certification usually takes seven days. If the petitioner hasn’t filed an H-1B petition before, the LCA filing system may prompt the employer to submit evidence of its federal employer identification number (FEIN). The DOL’s vetting of the FEIN can add one week or more to the H-1B preparation time frame, so it’s wise to start the process early. Once the LCA is certified and other disclosure requirements have been met, the employer can file its petition with USCIS.
Looking ahead
This information will help as you move forward with your H-1B requests. You should be aware that last year, the U.S. Senate passed a comprehensive immigration reform bill ― the Border Security, Economic Opportunity and Immigration Modernization Act of 2013. The bill proposed a major overhaul to the current immigration system and addressed concerns such as enforcement, border security, and a path to citizenship for the 11 million undocumented workers currently in the country.
The bill would bring major changes to the H-1B process, increasing the number of H-1B visas from 65,000 to 115,000 annually. The increase has long been sought by a variety of industries, most notably the technology industry, which relies heavily on skilled foreign labor. However, the bill wasn’t considered by the House of Representatives, chiefly because of differences in opinion on the bill’s treatment of border security and the path to citizenship. Instead, House Democrats released a separate, comparable measure. Federal budget debates and the related government shutdown stalled further discussion on either comprehensive bill. Then, House Republicans returned with a piecemeal approach that would split the comprehensive bills into several issue-specific resolutions.
We will likely see both the comprehensive and piecemeal approaches resurface in 2014. However, whether immigration reform makes any progress in the 2014 session will depend on many factors, including attitudes and tensions during the next debate over the federal debt limit, distraction by midterm congressional elections, and pressure from constituents and advocacy groups. So for now, the number remains of H-1B visas at 65,000, so don’t delay!
Elaine Young is an attorney with Kirton McConkie, practicing in the firm’s Salt Lake City, Utah, office. She may be contacted at eyoung@kmclaw.com.