Advance planning is crucial. Due to the improving economy and the backlog of demand from April 2014, the H-1B cap will likely be exceeded again this year. Employers that fail to file H-1B petitions on April 1 may lose the opportunity to employ the intended foreign national candidate.
What is H-1B classification? H-1B classification provides work authorization to foreign nationals seeking long-term, but temporary, positions in “specialty occupations” with U.S. employers that require a Bachelor’s degree or higher. These include healthcare occupations such as physicians, chiropractors, physician assistants, physical therapists, occupational therapists, speech pathologists, and other healthcare professionals. Nurses may be eligible depending on the position offered. Employers must file a petition with U.S. Citizenship and Immigration Services (USCIS) on behalf of the prospective employee. If approved, the employee may initially work in the U.S. for up to three years, which can be extended to up to six years.
What is the H-1B cap? Foreign nationals seeking H-1B status for the first time are subject to an annual cap. Only 85,000 new H-1B visas are available each fiscal year. For all applicants subject to the cap, applications should be filed during the first week in April. Employment cannot commence earlier than Oct. 1 of each year.
Are there exceptions to the cap? The cap on H-1B visas does not apply to prospective employees of institutions of higher education, nonprofit entities related to or affiliated with institutions of higher education, nonprofit research organizations, or governmental research organizations. Research hospitals affiliated with universities may be exempt from the cap, but private medical practices are not exempt. Physicians who entered on J-1 visas who have been granted a waiver of the two-year foreign residence requirement may also avoid the cap.
Many foreign national healthcare professionals may already be working under another visa classification other than H-1B. If their immigration status will expire before Oct. 1, 2016, with no possibility of extension, employers should consider filing an H-1B cap petition on April 1, 2015, for an Oct. 1, 2015, start date, to avoid a gap in immigration status.
Do I really have to file on April 1? It is likely the number of H-1B applications will exceed the cap this year. Therefore, some H-1B petitions subject to the cap will not be accepted for processing. We recommend contacting an immigration attorney as soon as possible – preferably by Feb. 15 – for help evaluating the options and gathering the necessary documentation.