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SUBMITTING AN H-1B PETITION ON APRIL 1st: WHAT PROSPECTIVE H-1B EMPLOYERS AND EMPLOYEES NEED TO KNOW? [Part I ] By: Michael Phulwani, Esq., David H. Nachman, Esq., and Rabindra K. Singh, Esq.

Although the U.S. economy slowed down a bit during the fourth quarter of 2014, recent reports suggest that it would pick up again because of continued job growth, consumer confidence and spending increases. What does this mean for the immigration practitioners, professionals, and prospective H-1B employers and employees? Assuming that the economy performs as projected, it is highly likely that we will once again, as we did in 2014, witness the H-1B lottery (technically referred to as "Random Selection Process") during April 2015. To better prepare for the H-1B cap, this article endeavors to summarize a few practice pointers which every prospective H-1B employer and employee should know. 

Limited Numbers: Not 65,000; There Are Only 58,200 Regular H-1B Visas.

The current annual cap on the H-1B category is 65,000. However, all H-1B nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the nationals of Chile and Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1B visas are granted each year except the 20,000 additional H-1B visas which are reserved for individuals who have received master's degrees or higher from a U.S. college or university. In another upcoming article, we will discuss, in detail, whether or not every master's degree from a U.S. academic institution would qualify an individual for the H-1B master's cap.

Because of the limited number of H-1B visas, employers should immediately begin to identify individuals who would need H-1B sponsorship. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA). Thus, strategizing the submission of H-1B Petition is a key to hiring an H-1B employee for the new United States and Citizenship Services (USCIS) fiscal year beginning on October 1, 2015.

How Long Will USCIS Accept H-1B Petitions?

It is preferable, not mandatory, to submit H-1B Petitions on April 1, 2015. The answer to the question "how long USCIS will accept H-1B Petitions" depends on how many H-1B Petitions USCIS will receive during the first five (5) business days (i.e. from Wednesday, April 1, 2015 until Tuesday, April 7, 2015) following the April 1, 2015 deadline. If USCIS receives a sufficient number of H-1B petitions during the first five (5) business days of fiscal year (FY) 2016, an announcement will follow, probably on Tuesday, April 7, 2015, about the Random Selection process. If, however, USCIS does not receive a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2016, during the first five (5) business days, it will keep accepting H-1B Petitions until it announces a "final receipt date" for new H-1B petitions[2]. It is beyond the scope of this article to discuss how USCIS conducts the Random Selection process. We will address this topic, in detail, in another article.

Refrain From Filing Multiple H-1B Petitions For the Same Employee.

An employer may not file more than one H-1B petition for each prospective employee during the fiscal year. Therefore, a prospective employee who qualifies for the "Master's Cap" of 20,000 cannot file two (2) petitions to encompass the regular H-1B and the Master's H-1B. The limitation also precludes an employer from filing multiple petitions for different jobs for the same employee but does not preclude related employers (e.g., parent and subsidiary companies or affiliates) from filing petitions for the same beneficiary. However, the employer must demonstrate a legitimate business need to do so and if it fails to meet that burden, all petitions on behalf of the beneficiary will be denied or revoked.

Both the Proffered Position And the Prospective H-1B Employee Should Qualify.

Not only the prospective employee but both the proffered position and prospective employee should qualify for the H-1B visa. For a proffered position to qualify for an H-1B visa, it must be a "specialty occupation". "Specialty occupation" is an occupation that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The H-1B regulations further require that a position also meet one of the following criteria, in order to qualify as a specialty occupation: 1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; 2) The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; 3) The employer normally requires a degree or its equivalent for the position; or 4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Therefore, in order to qualify as a "specialty occupation," a proffered position must: (1) require a theoretical and practical application of a body of highly-specialized knowledge; (2) require a bachelor's degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation; and (3) meet one of the four alternative criteria listed above.

For a prospective employee to qualify for the proffered H-1B position, regulations specify that s/he should have either one of the following: (1) Full state licensure to practice in the occupation (if required); (2) Completion of the degree required for the occupation; or (3) Progressively responsible work experience in the specialty equivalent to the completion of such degree. Thus, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.

For any additional H-1B information or for information about options for avoiding the H-1B cap, please feel free to contact the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. at info@visaserve.com or by calling our offices at 201-670-0006 (x107). Our highly qualified immigration lawyers and immigration attorneys stand ready to assist employers with the H-1B nonimmigrant visa process.

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