Now is the time for employers to talk to their foreign national professional workers in preparation for H-1B sponsorship. Eighty-five thousand H-1Bs are available each federal fiscal year, and the submissions take place during the first week of April. U.S. Citizenship and Immigration Services (USCIS) will accept petitions between April 3 and April 7, 2017, eventually selecting H-1Bs that will start on the first day of Federal Fiscal Year 2018 (October 1, 2017).
The challenge with H-1B applications is that demand always outstrips supply. During the five-day filing window in 2016, USCIS received more than 236,000 petitions. The law mandates that USCIS use a computer-generated process to randomly select the petitions for further adjudication. This process is often referred to as the “H-1B lottery.” Cases that are not selected in the lottery are returned to employers. It then becomes critical to explore other forms of work authorization for these employees, because those without alternative work authorization must depart the U.S.
One of the alternatives most frequently considered is Optional Practical Training (OPT). In May 2016, the final rule to expand the OPT program for F-1 international students who are in the fields of Science, Technology, Engineering, and Mathematics (STEM) took effect. This expansion allows international students in STEM fields to receive a 12-month OPT extension with the possibility to extend an additional 24 months. Other options may include country-specific visa categories, such as TN for Canadian and Mexican professionals or E-3 for Australians.
Some employers are exempted from the 85,000 numerical limitation, allowing them to sponsor new H-1B petitions at any time without considering the April filing deadline. This group includes nonprofit higher-education institutions, nonprofit entities affiliated with higher-education institutions, and nonprofit or governmental research organizations.
Processing of an H-1B petition is complex. It requires a separate filing with the U.S. Department of Labor and assembly of supporting documents before an H-1B petition can be submitted to USCIS. MSEC immigration attorneys are available to discuss questions members may have about H-1B planning and processing. We also provide consultations on alternative employment authorization options.
To kick off the H-1B season, MSEC will host a Briefing Session Webinar on H-1B Sponsorship on January 26, 2017, and an in-person session will take place at the Utah office on February 7, 2017. MSEC immigration attorneys will discuss issues surrounding H-1B filings and answer your questions.