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Deadline Approaching for H-1B VISA – CAP Filing

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Ryan E. Lamb and Toufic R. Saati
Foster Swift Business & Tax Law E-blast
January 28, 2019

For employers seeking to hire a foreign worker for a “specialty occupation” (generally, a job that requires at least a Bachelor’s degree or its functional equivalent in a particular occupation), an H-1B Employment Visa is an option that may be the perfect fit for your hiring needs.  The H-1B Visa includes the following features:

  1. duration – H-1B Visas are issued for an initial term of three years, with the option of a three-year extension;
  2. dual intent – the visa holder can have temporary or permanent intent to reside in the U.S.; this allows some flexibility as it permits the visa holder to at some point pursue permanent residency both without leaving the U.S. and without violating his or her temporary visa status;
  3. change of status- an H-1B Visa can often be obtained in the U.S. without traveling to a foreign consulate to acquire the new visa and seek re-entry into the U.S; and
  4. portability – in the event of a change of employment, an H-1B can be transferred to a different employer. 

Sound too good to be true?  Well…sort of. The major hurdle for employers is that in recent years, the number of H-1B petitions received has far exceeded the annual allotment. Currently, H-1B regulations permit an annual allotment of 65,000 H-1B petitions and an additional 20,000 petitions for those who have earned a U.S. Master’s degree or higher. In 2018, 190,098 petitions were received within the first week of the petition period. All applications filed in the first week of April, 2018, were placed in a random lottery that determined which petitions would take the available slots, with losers and late filers stuck out of luck until the following year.

The first day of H-1B filing availability is April 1, 2019, for an October 1, 2019 start date. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for the last six years. This means that the timing for employers to be ready to file by the April 1, 2019 petition date is as crucial as ever. The time to start strategizing and preparing for an H-1B petition is now. Employers are recommended to begin locating and identifying any potential employees that it may want to sponsor for an H-1B visa.

For years, dynamic and growing companies have been frustrated by the cap’s impact on their ability to hire the best and brightest talent to meet their needs. In the current tight labor market, you may wish to apply for an H-1B Visa before they run out.

If you have any questions regarding immigration visas, please contact a Foster Swift immigration law attorney.