Are you Prepared for A Possible H-1B Lottery?

Last year U.S. Citizenship and Immigration Services (USCIS) received more than 124,000 applications for new H-1B specialty occupation visas for foreign professionals during the first week of April. As a result, USCIS implemented a computer-generated lottery system to allocate the 65,000 regular H-1B visas and the 20,000 additional H-1B visas reserved for foreign nationals with a master’s degree or higher from a U.S. institution. Although there were predictions of high demand in 2013, some employers were not prepared given that the cap had not been reached for many months in the two previous years. Demand this year for H-1Bs is forecasted to be even greater. Accordingly, employers hoping to sponsor foreign nationals for new H-1B visas for employment beginning October 1, 2014, are urged to act quickly in order to file their petitions by April 1, 2014.

Several steps must be completed before an H-1B petition can be filed. First, the employer should work with legal counsel to prepare a detailed job description that fits within the definition of a “specialty occupation.” In addition, if the foreign national was educated abroad or does not have a degree, an expert evaluation must be obtained to confirm that the degree or combination of education and/or experience is equivalent to a U.S. Bachelor’s degree. Employers must also file a Labor Condition Application (LCA) with the U.S. Department of Labor (DOL), which takes at least seven business days to process. The LCA processing time may also be delayed if the employer’s Federal Employer Identification Number cannot immediately be verified by the DOL. Given the preparation time needed and the likelihood of high demand for H-1B visas this year, employers are strongly encouraged to begin preparing their new H-1B petitions now.

Another takeaway for employers from last year’s H-1B lottery experience is to consider a potential back up plan in advance. In some cases, there may be alternatives to the H-1B that allow for initial or continued work authorization for current or prospective foreign national employees. For example, recent foreign graduates of U.S. institutions may be eligible to apply for 12 months of Optional Practical Training (OPT) work authorization. Foreign graduates with degrees in Science, Technology, Engineering or Mathematics fields may also apply for an additional 17 months of OPT if their employer participates in the E-Verify system. In addition, foreign workers who are nationals of Canada, Mexico, Australia, Singapore, or Chile or have achieved extraordinary accomplishments in their field may be eligible to apply for other types of nonimmigrant visas. There may also be longer term solutions that could lead to work authorization in the future.  In particular, if your company has operations abroad, you could consider sending the foreign national to work in a foreign office for a year, after which he or she may be eligible for an L-1A (executive/manager) or an L-1B ( specialized knowledge) intracompany transfer visa. While it may require creativity and advance planning, these and other possibilities may provide alternatives to the H-1B depending on the circumstances.