The Time is Now
Based on the extremely limited nature of the H-1B filing window, employers are advised to begin laying the groundwork now to maximize the opportunity to obtain one of the highly coveted H-1B slots.
The H-1B is the main visa used by U.S. employers to hire highly skilled professional foreign workers. Each year on October 1st, approximately 65,000 H-1Bs are made available (with an additional 20,000 for foreign nationals with masters degree or higher from an American university), and once these visas are allocated, the H-1B window is closed until the following year. In 2014, all of the available H-1Bs were snapped up by employers during the first week of the filing period. In fact, employers filed applications for more than twice the available number of H-1Bs, leading to an H-1B lottery. With the improving economy an even greater demand for H-1Bs exists in 2015, and employers should begin planning now for the coming H-1B filing season.
Employers are allowed to file H-1B applications starting six months prior to the start of the new H-1B year. This means the filing season for the next round of H-1Bs begins on April 1, 2015, and we predict all of the H-1Bs will be spoken for by no later than April 6.
Certain employers are exempt from the H-1B cap, including institutions of higher education, nonprofit organizations related to or affiliated with an institution of higher education, and nonprofit or governmental research organizations. There is no yearly limitation for non-exempt H-1Bs. In addition, the H-1B cap does not apply to foreign workers who have been granted H-1B status in the past six years and have already been counted against the cap. Employers are free to file for H-1Bs at any time for these cap-exempt employees, which can be an attractive recruiting and staffing option for employers to consider.
Some H-1B Basics
A common misconception is that the H-1B is just for high-tech workers. While it is true that many technology companies employ foreign workers on H-1B visas, the H-1B is also available for positions in health care, engineering, business, and manufacturing, among other industries. Generally, positions which require at least a bachelor's degree in a specialized area are suitable for H-1B sponsorship. As part of sponsoring an employee or potential employee for H-1B status, an employer must agree to certain conditions. Some of these conditions include:
- The employer must offer the foreign worker the same employment benefits and working conditions as offered to other US employees.
- The foreign worker must be paid a salary that is no less than the salary earned by similarly situated US employees.
- The employer cannot materially change the terms or conditions of an H-1B worker's employment without notifying US Citizenship and Immigration Services.
The H-1B provides long-term work authorization to the foreign employee. An initial grant of H-1B status can be valid for up to three years, and the employer may extend the H-1B for an additional three year term. The H-1B can be an excellent way for employers to retain key talent for a lengthy period of time.
For More Information
To begin planning your H-1B strategy in advance of the April 1st, 2015 opening date, please contact the author or your Polsinelli attorney.