Friday, March 18, 2016

April 1st -- All Fools' and H-1B Day!

By Angela Lopez

Every year, we celebrate this popular day by playing practical jokes and hoaxes. Some newspapers, magazines, and other media report fake stories, which are sometimes later revealed to have been created and placed by the media itself.  
There is another April 1st that, although not associated with April Fools’ Day it seems like a joke to many U.S. employers and has to be explained before, during, and after that day.   This April 1st is not celebrated, but dreaded by thousands of U.S. employers who desperately need qualified professional workers. Yes, I said desperately because only smart, successful, sound business people spend time and thousands of dollars to play the H-1B visa lottery.  

Every year, on April 1st thousands of employers start  filing their H-1B visa applications with the United States Citizenship and Immigration Services (USCIS) to have a “chance” to win one of the H-1B visas.  

H-1B visas are limited to  85,000 people per fiscal year (October 1 to September 30).  65,000 of which are for professionals with Bachelor’s degrees or its equivalent, and 20,000 of which are reserved for professionals holding U.S. Master's degrees or higher. Of the 65,000 visas, 6,800 are reserved for citizens of Chile and Singapore under free trade agreements. The majority of professionals complete for the remaining 58,000 H-1B visas.    

Last year, the USCIS received nearly 233,000 H-1B petitions during the filing period, which began April 1st and ended April 7th.  This year, the USCIS will again start accepting H-1B petitions on April 1st – April Fools’ Day!  As in previous years, we expect the USCIS to receive thousands of petitions surpassing the H-1B CAP once again!

Employers who are not lucky enough to win the H-1B lottery, will receive their H-1B petitions back from the USCIS along with the respective filing fees and a “rejection notice” that reads: “All H-1B cap-subject petitions received …… were subject to a computer-generated random selection process. USCIS received your petition during this timeframe; however, it was not among those randomly selected for processing.”   Really! To these employers it must feel like a very bad joke!

Employers should prepare their H-1B visa petitions thoroughly and file them by April 1st, so if they are lucky and win the lottery, the petitions are approved without delay. However, employers must also know that they have options in the likely event they do not win the lottery. These options include but are not limited to: TN visas for NAFTA (Mexico and Canada) professionals, L-1 visas for multinational corporation employees, E-3 visas for Australian professionals, O-1 for Extraordinary Ability workers and E visas for investors (individuals and/or companies).   

An H-1B visa is one of many options amongst many other employment-based visas. It is incumbent upon employers to know their options and strategize to successfully process their temporary or permanent employment visas and eventually bring that key foreign professional to work in the U.S.  Consultation with an experienced immigration attorney before starting any immigration process in the first step to a successful outcome.

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