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Employers Will Likely Face Another H-1B Lottery While Congress Grapples with FY H-1B Bill

January 23, 2015 | Written by Laura J. Mazel

This New Year has employers chomping at the bit to hire key talent. Administrative agencies and Congress continue to be stalled on business immigration fixes even though we now have a bipartisan bill in Congress to help on the H-1B front. As a result, count on another H-1B lottery this April. Expect the government to award only 65,000 new H-1B visas this year, with an additional 20,000 for U.S. advanced degree graduates. The government will accept H-1B cases as early as April 1, for start dates on October 1. By regulation, an H-1B lottery will include all petitions received within the first five days of April. Given last year’s yield of about 50%, and this year’s continued economic recovery, we may see a much lower yield this spring unless Republicans in Congress can stomach passing an H-1B visa increase.

WSM has been reaching out to our clients and recommends that employers identify all fiscal year candidates by early February. Employers and their recruiters should have the following candidates and employees on their radar:

• New college hires
• Current employees holding post-completion practical training work authorization, particularly those EADs expiring before October 1, 2016
• Overseas employees likely to be given a US assignment and for whom an L-1 visa may not be an option
• L-1B visa holders who may not complete the green card process before their 5 year maximum stay
• TN visa holders who will begin the green card process in the next 18 months
• Lateral H-1B hires from academic or nonprofit research institutions who were never counted against the cap

Employers should kick start the H-1B process now to increase the likelihood of success and empower their recruiters also to be prepared to act quickly with foreign national candidates. Before filing the H-1B petition, employers must obtain approval from the Department of Labor (DOL) of a Labor Condition Application (LCA). Currently the DOL is taking about 7 days to approve LCAs, but this processing time may increase as we get closer to April 1. In addition, immigration counsel will need job descriptions, salary information and may need to obtain educational equivalency evaluations.

Thankfully, many hires are exempt from the FY H-1B Quota and there may be workarounds:

• Lateral hires, meaning a candidate who already holds H-1B status working for a different employer, are not subject to the H-1B visa cap
• Academic and nonprofit research institutions, and institutions associated with an institution of higher learning also are exempt, H-1B workers moving from academia or research institutions to private industry requires extra strategic planning, however.
• Increased work authorization for STEM graduates if employers enroll in E-Verify, allowing for two “bites” at the Fiscal Year H-1B apple.
• Spouses of J-1 student or researcher visa holders are eligible for work authorization
• Spouses of intracompany L-1 visa holders are eligible for work authorization
• “B-1 business visitor in lieu of H-1B” may be granted at the Consulate for shorter term assignments of six months or less for professionals
• Individuals with Extraordinary Ability may qualify for the O-1 visa, even they are recent graduates

We hope that this is helpful as we enter the New Year and Fiscal Year H-1B Season hoping for agency action following President Obama’s executive action and Congressional fixes for employers.  Pragmatically, however, we prepare for the highest demand for H-1B visas in several years.  Please contact WSM with questions.