Start H-1B Visa Planning for 2014

The federal government’s fiscal year is underway (October 1 was the first day of the year – remember when the shutdown started?), and employers who hire H-1B workers need to start planning for the 2014 fiscal year visas. Beginning April 1, 2014 the US Citizenship and Immigration Services (USCIS) will accept H-1B requests from any company hoping to hire someone needing a new H-1B visa as of October 1, 2014. Yes, these employers must file the visa request 6 months in advance of the employee’s start date. As a lawyer I’d like to say, it’s not too soon to start H-1B planning now.

All year Congress has been debating immigration reform, including raising the H-1B cap. In January, Microsoft Chairman Bill Gates, an advocate for immigration reform, said, “If someone is being offered a job here for over $100,000 – there’s other jobs created around that job – you don’t want to discourage the company.”

Each fiscal year, the government issues 85,000 new H-1B visas (known as the H-1B cap, including 20,000 H-1Bs reserved for Masters degree graduates; for more information, see the USCIS). This year, for the first time since 2008, the government held a lottery for those H-1B visas because they received 124,000 requests. Based on the hiring of my clients (high tech and otherwise) I predict the number of H-1B petitions to reach even larger numbers on April 1, 2014. H-1B planning will therefore need to include contingency planning as well.

The H-1B cap applies only to those employees who don’t already hold H-1B status in the US. Employees moving from one employer to another do not require a new H visa number, though the new employer does need to prepare an H-1B amendment. However, if a company is hoping to hire a new college graduate, or bring in someone from an overseas affiliate, that person will most likely need an H-1B visa cap number.

The H-1B visa requires the prospective employee to hold a bachelor’s degree (or equivalent combined education and/or experience) in a specialized field, and the employer must show that the job offered requires someone with that education. In addition, the employer must first get approval of a Labor Condition Application (LCA) from the Department of Labor, attesting among things to pay the H-1B employee what it pays all US workers similarly employed or the prevailing wage for that geographical location, whichever is higher. Getting that LCA properly prepared involves classifying the professional job in the most relevant government category; for our cloud-based, social media and other new technology clients, this can be challenging as the government’s list of occupations seems to pre-date the internet (I wish I was joking).

This year Mark Zuckerberg founded a non partisan non-profit group of CEOs and other leaders, FWD.us (also a “Future of HR” sponsor), to advocate for immigration reform including an increase of H-1B numbers. On November 18, FWD.us launched a series of ads asking Congress to not let immigration reform die.

Because Speaker of the House John Boehner has made it clear he is not happy with the Senate immigration bill (passed and waiting for action by the House since May), immigration form is looking less and less likely this year.

If Congress had been able to agree on immigration reform, we might have seen an increase in the number of new H-1B visas given out. Unfortunately, the government’s lack of action means that many hiring managers will be scrambling to fill jobs when a candidate they have already vetted is unable to win the H-1B visa lottery next year.

Flora Hoffman, Of Counsel with Weaver Schlenger Mazel in San Francisco, is a 20 plus year veteran in business immigration. Before attending law school, she worked for a startup software company in Cambridge, MA. Photo Credit CoyoteCreek.