USCIS Accepting H-1B Visa Petitions Starting April 1

Author: Melissa A. Silver, XpertHR Legal Editor

March 27, 2014

The United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B visa petitions for the 2015 fiscal year on April 1. However, the number of H-1B visas available each year is limited. There are currently only 65,000 new H-1B visas available each year and an additional 20,000 H-1B visas available to foreign nationals holding a master's degree or higher from a US university. As a result, due to the yearly cap, an employer must ensure the filing of the appropriate visa paperwork as soon as possible in order to avoid any desired workers not meeting the visa quota.

In fact, last year, the USCIS did not accept any more H-1B petitions subject to the cap or the advanced degree exemption after April 5. Petitions received through April 5, 2013, were selected using a random process (i.e., a lottery). Last year's cap was reached two months earlier than the prior year.

In recognition of the need to attract and retain talented foreign workers, the Immigration Innovation Act of 2013 and a comprehensive immigration reform bill were introduced, both proposing, among other things, to increase the number of H-1B visas each year. Neither legislative effort has been realized.

H-1B visas are issued to foreign workers who will work in a specialty occupation in the US. A specialty occupation position is defined as a job that requires at least a bachelor's degree (or its equivalent) in the specialty field of study. Several organizations are exempt from the numerical cap, including institutions of higher education (or an affiliated or related nonprofit entity), nonprofit research organizations and governmental research organizations.

If the H-1B petition is not selected or is filed after the cap is reached, an employer seeking to hire an individual on an H-1B visa will have to wait until next year to file a petition. Alternatively, should the USCIS approve the H-1B visa petition, the visa will become effective on October 1 if: (i) the employer is not an organization exempt from the numerical cap; or (ii) the individual does not currently have H-1B status.