Carefully Consider H-1B Sponsorship Before April (George Ernst Commentary)

by George Ernst  on Monday, Jan. 21, 2013 12:00 am  

Over the next few months Arkansas employers should carefully consider if they want to hire and sponsor foreign national employees under the H-1B program.

If current trends continue, it appears that the time frame to sponsor a foreign national employee under the H-1B program will be much shorter than in recent years. The H-1B visa category permits U.S. employers to employ foreign workers in “specialty occupations.” These are typically highly skilled workers with a minimum of a bachelor’s degree or its equivalent.

For the 2014 fiscal year (Oct. 1, 2013-Sept. 30, 2014), the H-1B visa program has a general cap of 65,000 visas and an advanced-degree cap of 20,000 visas. The annual cap only applies to new H-1B petitions; it does not include extensions for existing H-1B workers or when an existing H-1B worker changes employers. Employers can begin to file an H-1B petition for employment that will begin during the 2014 fiscal year (that is, employment beginning on or near Oct. 1) on April 1. After the annual H-1B cap is reached, employers will need to wait until the next fiscal year’s filing date (April 1) to file a petition for employment to begin on or about Oct. 1, 2014, unless the employer qualifies for an exception to the annual H-1B cap rule.

Before the recession began in 2008, it was not uncommon for the full annual cap of H-1B visas to be reached within the first few months, or sometimes even weeks, after the April 1 filing date. However, by the start of the 2009 fiscal year, there was a noticeable drop in the number of H-1B petitions. For instance, during the 2009 fiscal year, the H-1B annual cap was not reached until January 2009, almost 10 months after the initial filing date.

This trend continued during the 2011 and 2012 fiscal years, when the annual H-1B caps were not reached until Jan. 27, 2011 and Nov. 23, 2011.

However, current trends have demonstrated a substantial increase in the number of H-1B petitions. Last year, the annual H-1B cap was reached by July. This dramatic change indicated that the employment situation in the U.S. was improving, and more employers were once again willing to sponsor foreign national employees.

The current consensus is that this year’s annual H-1B cap may be reached within the first few months after the April 1 filing date. Some immigration practitioners are predicting that the cap could be reached as early as mid-May.

Thus, employers need to now start assessing whether they want to sponsor foreign national employees in order to ensure that they will be able to file a petition before the annual cap is reached. This is particularly true if the employer is interested in hiring a foreign national student who will be graduating with a bachelor’s degree or other advanced degree this May. Employers who delay making such determinations may be unable to sponsor any foreign national employees under the H-1B visa program until the following year.

George Ernst is an immigration attorney with the Mitchell Williams Selig Gates & Woodyard firm in Little Rock. Email him at GErnst@MWLaw.com.

 

 

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