March Madness for H-1B Preparation Has Begun

March 22, 2012

It's that time of the year again. As college basketball enthusiasts turn on their TV sets and head to the sports arena in the spirit of March Madness, immigration attorneys are preparing for a different type of seasonal hype. In the mind of the immigration lawyer, "March Madness" represents the frenetic period of the year when we embark on the final sprint to prepare H-1B petitions to file on April 1st. While the fiscal year for new H-1B visas begins on October 1st, USCIS allows U.S. employers to submit H-1B applications up to six months before, starting on April 1st. Under the numerical limit for H-1B visas set by Congress, the USCIS may allocate up to 65,000 H-1B visas, in addition to another 20,000 allocations for advanced-degree applicants with a U.S. Master's degree or higher. The limited number of available H-1B visas means that immigration attorneys and U.S. employers must often scramble in the pre-season month of March to prepare and submit their petitions before USCIS reaches the cap.

Last year, the USCIS reached the numerical limit for cap-subject H-1B petitions on November 22, 2011 This was a significant uptick in the rate of submission of H-1B petitions in comparison with FY 2010, when USCIS did not reach the cap until a full ten months after the start of the filing period. Compared to previous years, however, in which the cap was often reached within a few months or even a few days, the rate of submission of H-1B petitions has slowed significantly in the last few years. In FY 2008-2009, USCIS reached the cap on April 7, 2008, merely seven days after the opening of the filing period. In FY 2007-2008, the cap was reached on April 2nd, the day after the filing start date. Economic analysts have conjectured that the lull in the rate for filing H-1B petitions was reflective of the weakened state of the U.S. economy.

While it is difficult to predict when the USCIS will reach the cap, the strengthening U.S. economy suggests that the filing period for FY 2012 may terminate at an earlier date than last year. To be on the safe side, employers certain about hiring specific foreign workers for whom they have been waiting to file should prepare their petitions for filing by April 1st. If the volume of applications submitted in the first few days of the filing period shows that the cap will be reached, then under the H-1B program's regulations, USCIS will conduct a lottery for all applications filed within the first five days of April.

For immigration attorneys in Silicon Valley, we're currently feeling the March Madness crunch. The H-1B is distinctive from other types of employment visas because it is highly regulated by the U.S. Department of Labor. Before submitting an H-1B petition to the USCIS, employer must submit a Labor Condition Application to the Department of Labor. In this application, employers attest that they will pay their H-1B workers wages at least as much as the "prevailing wage" for similarly employed workes in the area of intended employment, that their employment of H-1B workers will not adversely affect work conditions for U.S. workers in the same field, that there are no strikes or lockouts, and that notice of the application was provided at work or to a collective bargaining representative. Obtaining a certified Labor Condition Application can take as long as seven days, so employers need to factor in this additional time when they are preparing for the April 1st filing date.

Upon the approval of the LCA, the employer can go ahead and submit the H-1B petition to the USCIS. An H-1B visa may be requested for up to three years, and can be extended for an additional three years, with exceptions.