As the economy improves, the demand for H-1B Specialty Occupation visas will continue to increase. The Fiscal Year 2015 (FY15) H-1B filing season begins on April 1, 2014, and employers should plan for it now. In particular, they should expect that the available H-1B visas will run out due to high demand and have contingency plans in place.

The H-1B visa category is essential to many businesses that wish to employ foreign nationals in professional positions. Each year, the government makes available 65,000 new H-1B visas (commonly referred to as the “H-1B cap”) for individuals who do not hold H-1B status. (Current H-1B holders have been counted against prior caps, so status extensions are not subject to the limit.) Under the advanced degree exemption, an additional 20,000 H-1B petitions are available for individuals who have earned a U.S. Master’s Degree or higher. Cases approved under the H-1B cap will have a start date of October 1, 2014, the first day of the U.S. government’s fiscal calendar.

Last year, both the general and the Master’s Degree H-1B numbers ran out within the first week applications were accepted. Of the applications filed in the first week of April 2013, approximately 33 percent were rejected based purely on over-demand following a lottery system administered by U.S. Citizenship and Immigration Services (USCIS). Thus, employers should consider filing H-1B applications on or about April 1, 2014, to maximize the chances of approval. While USCIS has not confirmed if all petitions received during the first week of April will be held (as they did last time), failure to file on or about April 1st could mean employers will have to wait until October 2015 to obtain H-1B status for affected employees or prospective hires.

The H-1B cap applies to individuals who do not hold current H-1B status, such as students in F-1 status completing Optional Practical Training (OPT), TN status holders, L status holders, or job candidates currently residing abroad. It is particularly important for employers of students in F-1 status to seek a switch to H-1B status in a timely fashion.

Options are available to alleviate problems caused by the H-1B limit. For example, by enrolling in the federal E-Verify system, employers gain access to a special 17-month extension of work authorization for foreign students in STEM (Science, Technology, Engineering and Mathematics) fields. In addition, job candidates from Australia, Canada, Mexico, Chile and Singapore have treaty-based nonimmigrant visa options for the same types of positions typically filled by H-1B visa holders. In special circumstances, our attorneys also have filed O-1petitions for individuals who have demonstrated extraordinary achievement in their fields.