By: Ryan M. Helgeson, Esq.
On June 11, 2012, the United States Citizenship and Immigration Services ("USCIS") announced that they had received sufficient H-1B petitions to satisfy the statutory cap for fiscal year 2013. After that date, USCIS will reject any cap-subject petitions for new H-1B petitions. USCIS will continue to accept and process petitions that are cap-exempt, such as petitions for extensions of previously approved H-1B status; change of employers or of terms of employment for current workers; and petitions for concurrent H-1B employment.
This fiscal year the cap was reached in approximately 10 weeks, representing the quickest the cap has been reached since fiscal year 2009. The previous three years, it has taken between 8 and 10 months to reach the cap. See Figure 1. Given this recent trend, it is strongly recommended that employers be prepared to file their H-1B petitions at the very start of next fiscal year. USCIS will begin accepting H-1B petitions for fiscal year 2014 on April 1, 2013, with employment for approved petitions to begin no earlier than October 1, 2013.
On-going Employer Obligations
Though current plans for H-1B petitions may be temporarily on hold, employers must still be aware of their on-going obligations to current H-1B employees. In a recent case, a New Jersey-based company failed to pay its H-1B employees the required wage listed on the petition and to post the required notices of filing of the Labor Condition Application. These failures resulted in orders to pay over $250,000 in back wages and more than $67,000 in civil penalties. This case highlights the importance of being aware of and closely adhering to the H-1B regulations.
Because the H-1B cap has been reached, U.S. businesses that use the H-1B visa program to temporarily employ foreign workers in specialty occupations will have to wait until next fiscal year to apply (if no alternative visas are available). Employers may be faced with having to release potential valuable employees, particularly those currently working pursuant to a grant of Optional Practical Training ("OPT") based on their completion of schooling.
One potential solution for retaining certain employees until H-1B petitions are available next year, is to seek a 17-month "STEM extension" for their current OPT period. Students who received science, technology, engineering, and mathematics (STEM) degrees in fields of study included on the USCIS's Designated Degree Program List may apply for an extension of their OPT. USCIS recently expanded this list of eligible programs to include many fields of Natural Resources and broad computer and information technology programs.
The granting of the 17-month STEM extension would allow employers to retain their educated foreign employees until such time as they may file another H-1B petition on behalf of the employee.
Additionally, there may be other visa categories available to businesses looking to employ foreign workers. To learn about the potential applicability of these categories or if you have any questions regarding H-1B visas, employer obligations, or any other employment immigration question, please contact Attorney Ryan Helgeson at 630.377.1554 or at email@example.com.