It's the Most Wonderful Time of the Year! H-1B Cap Season is Here! It's the Most Wonderful Time of the Year! H-1B Cap Season is Here!

It's the Most Wonderful Time of the Year! H-1B Cap Season is Here!

Every year, employers hire foreign nationals in positions for which they cannot find sufficient U.S. workers. And, every year, many employers and foreign nationals are disappointed when they come up short in the annual H-1B visa lottery. On April 1, 2015, USCIS will begin accepting petitions for H-1B temporary workers for Fiscal Year 2016. If approved, H-1B status will become effective no earlier than October 1, 2015. There are only 65,000 new H-1B visas available each fiscal year (with an additional 20,000 reserved for foreign nationals with a U.S. master's degree or higher). Employers who want to sponsor foreign professionals should initiate H-1B petition processing now. Last year, USCIS received approximately 172,500 H-1B petitions, and the year before that, 124,000 petitions were received. When this occurs, a computer-generated "lottery" is used to select petitions against the numerical cap. The cap will likely be exhausted in the first week of available filing again this year.

The H-1B annual quota applies to foreign nationals who do not presently hold H-1B status, including recent graduates who are working during their one year of "optional practical training." This cap does not apply to filings for H-1B workers who have already been counted against the annual H-1B quota, which includes requests for extensions of stay or changes in employer sponsor. Certain types of employers are exempt from the H-1B annual quota, including institutions of higher education and their related or affiliated nonprofit entities (including some hospitals), and nonprofit research organizations or government research organizations.

All H-1B employers are obligated to pay the H-1B worker a minimum prevailing wage for the offered position, and the category is only available for professional-level employment which typically requires a minimum of baccalaureate level education in a specific discipline. This classification is widely utilized by U.S. companies on behalf of foreign engineers, information technology professionals, physicians, professors, executives, managers and other professionals and is often the only available option for temporary employment in the U.S.

To discuss H-1B eligibility and requirements, please contact Jenifer M. BrownChristl P. Glier or any member of Ice Miller's Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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