Submitting an H-1B Petition on April 1st: What Prospective H-1B Employers and Employees Need To Know

It is highly likely that this year we will also see an H-1B lottery. Here are a few practice pointers which every prospective H-1B employer and employee should know.

The number of available H1-B visas is set at 58,200. 6,800 more visas are reserved for citizens of Chile and Singapore. An additional 20,000 H1-B visas are reserved for individuals who have received master’s degrees or higher from a U.S. college or university.

Keeping in mind the April 1st submission date, employers should allow sufficient time for petition preparation. This means the time required to file and receive certification of the required Labor Condition Application (LCA). Thus, careful planning of the submission of H-1B Petition is a key to hiring an H-1B employee for the new USCIS fiscal year beginning on October 1, 2015.

How long will USCIS accept H1-B petitions? The answer depends on how many H-1B Petitions USCIS will receive during the first 5 business days, from Wednesday, April 1, 2015 until Tuesday, April 7, 2015. If USCIS receives a sufficient number of H-1B petitions during these first 5 business days, an announcement will follow, probably on Tuesday, April 7, 2015, about the Random Selection (Lottery) process.

Both the job offered, and the qualifications of the prospective H-1B employee, need to qualify. For a job to qualify for an H-1B visa, it must be a “specialty occupation”. “Specialty occupation” is an occupation that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) a bachelor’s or higher degree in the specific specialty. The applicant’s degree in a specialized field must match the job description of the employer.

The filing fee depends upon the type and size of the H-1B employer. The fee can range from $825. to $5,550. All employers are required to pay the base filing fee of $325.00 for the H-1B petition. Additionally, most employers are required to pay a fee of $750 or $1500. There is also a $500 Fraud Prevention and Detection fee and an additional $2,000.00 fee if petitioners employ 50 or more employees in the United States. Further, either the employer or employee can pay an optional premium processing fee of $1,225.00 to expedite the adjudication of a petition if it is chosen in the H1-B lottery.

The LCA: A prospective employer must obtain a certification from Department of Labor that it has filed a Labor Condition Application (LCA) in the occupational specialty. On the LCA, the employer attests that the H-1B nonimmigrant worker will be paid wages which are no less than other employees in the same jobs receive. Additionally, employers are required to pay the costs for the petition process.

Posting a notice of the LCA & maintaining public access files. Notice of the LCA must be posted at the work place, or where there is a union it must be given to the union, before filing the LCA. The notice must be posted within 30 days before the date the labor condition application is filed.
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Q.1. What if an H1-B petition is not chosen in the CIS Random Selection Lottery during the first week of April?
A.1. CIS will return the application and all fees to those sponsors whose petitions are not chosen by random selection.
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Q.2. Does Congress have any plan to increase the number of H1-B visas?
A.2. On January 13, a bipartisan group of Senators introduced the Immigration Innovation Act. It would raise the general H-1B cap from 65,000 to 115,000, remove the 20,000 limit for the Masters’ degree cap, grant employment authorization for the H1-B holder’s spouse, and allow dual intent for foreign students at US universities.
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Q.3. Are most Americans in favor of increasing the number of foreign workers?
A.3. The border states are concerned about the number of illegal aliens entering the country, but in places of economic distress, like Detroit and Cleveland, people are hoping that immigrant investors and immigrant workers will help them to recover from the recession.