H-1B Season: Top 10 Things for HR Managers to Know

It’s the beginning of the 2017 H-1B Cap filing season! US employers who wish to have professional “specialty workers” obtain one of the golden 65,000 H-1B visas or 20,000 H-1B visas for those with a US master’s degree or higher will need to have a petition on file during the first week of April to put the employee in the running for an H-1B visa.

The H-1B Cap filing season is nothing new: for those not familiar with the H-1B visa, please see our brief history of the H-1B Cap filing season posted back in 2012.

Without further ado, here is our list of 10 things HR Managers need to know about the H-1B Cap filing season:

1. Timing is everything. Yes, the H-1B petition must be filed with the USCIS usually within the first five days of April to put that employee in the running for the next fiscal year’s H-1B quota. Easy, right? Well, to file the petition, the employer must have obtain prevailing wage data from the US Department of Labor or find a comparable wage survey to show the employee is paying at least the prevailing wage for the employee’s occupation, experience and the location where the employee will work. Once the wage is determined, then the employer must obtain a certified Labor Condition Application (LCA) from the US Dept of Labor (DOL). In the run up to April 1st, the DOL is inundated with LCA filings which can slow things down. Therefore, the first thing to do is get the LCA on file in time that it is certified so the petition may be filed because if the LCA is not certified, the USCIS will reject the H-1B petition.
2. Reality check: Filing the H-1B Petition with USCIS within the first five days of April is no guarantee of the employee will receive an H-1B visa. While it is very important to get the petition on file, there is a high probability that the employee will not get an H-1B visa.
3. It’s a numbers game: the USCIS reported on April 13, 2015 that it received 233,000 H-1B petitions for the 65,000 regular cap H-1B visas and 20,000 US master’s cap for the 2016 H-1B Cap filing season which means we can estimate that there’s about a one in three chance an H-1B petition will be randomly selected for the 2017 H-1B Cap filing season.
4. Non-US university degrees must be evaluated. The employee you wish to hire must have the equivalent of at least a US bachelor’s degree or higher in a specialized field in order to qualify for an H-1B visa. Therefore, a credential evaluation must be obtained from an credible evaluator to confirm the employee’s degree is equivalent to a US degree.
5. Are you offering the prospective employee a “specialty occupation” position? If your prospective employee has the right education credentials, that’s great but the job offered must be a “specialty occupation”. “Specialty occupation” is a particular term of art in US visa law which means that the H-1B job must normally require a bachelor’s degree or higher in a specialized field for entry in to the job or its foreign equivalent in education or work experience. US visa regulations mention examples such as accountants, lawyers, doctors and teachers but a “specialty occupation” can include lots of other occupations. Also, the USCIS may ask whether the company has always employed workers with specialized university level education for the proposed position.
6. You have to pay to play. Yes, that’s right. DOL regulations indicate that an employee’s salary cannot be reduced to cover the employer’s normal business expenses relating to the filing of the LCA and the H-1B petition. Even if the H-1B visa is not issued, lawyers require payment for their time and services prior to filing the H-1B petition.
7. Is the employer and employee subject to the H-1B cap? One thing to consider is that if the employer is an institution of higher education or a nonprofit related to such an institution or a governmental research organization, the employee is not subject to the H-1B cap which means an H-1B visa is available.
8. Is your prospective H-1B employee “Cap-Gap” eligible?  Potential H-1B employees who are foreign workers who are working in the US under Optional Practical Training (OPT) after completing a university degree may not have authorization to work in the US to the October 1st start date which creates a gap in the employee’s US work authorization. The USCIS has set out a provision for those caught up in the gap to allow them to continue working for the period between when their OPT ends and the H-1B starts.
9. Your prospective employee’s petition was received and will get an H-1B visa! Oh, wait, the prospective employee has a criminal conviction or is subject to additional administrative processing. If the employee is currently outside the US or not eligible to remain in the US and change his or her status to H-1B visa status, they will need to apply for an H-1B visa stamp at a US Embassy or Consulate outside the US. The approved petition establishes that the employee qualifies for the H-1B visa but the employee must also be admissible to the US. If the employee has certain criminal convictions, for example relating but not limited to, fraud, controlled substances, violent crime or crimes relating to alcohol, it could make the employee inadmissible to the US, delaying when the visa will be issued by up to eight months if recommended for a waiver or preventing the issuance of the visa entirely. Even if the employee doesn’t have a record, those born in certain countries are more likely to have their visa applications put on hold for months or, in some cases, years for additional administrative processing.
10. Didn’t win the lottery? Better luck next year or, are there other visa options that might be available to the employee?

If you wish to employ a non-US worker in the US in a professional occupation, please email our office at info@flynnhodkinson.com.