H-1B Visa Filing

Don’t Miss the Looming Deadline, Preparing for April 1st H-1B Visa Filings

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For further details on H-1B visa filings and other work visa options, attend Pabian’s ProLinks webinar on Tuesday, February 3, 2015, 2:00 – 3:00 p.m. CST. A longer version of this article can be found in the Winter 2015 issue of The Bottomline (set to publish Feb 2, 2015).

It is unavoidable – every year, we receive the dreaded phone call. It comes in early April and a new client calls very excited about sponsoring a foreign national (non-U.S. Citizen/non-U.S. Permanent Resident) who is a current or potential employee. I have to explain that the client called two weeks too late and there is little that can be done for the next 18 months. The client then has to tell its employee that he or she is likely going to have to return home or is unlikely to be able to be hired.

Why does this scenario play out every year? It is due to the annual H-1B visa filing deadline.

First, let’s understand the basics. An H-1B visa petition is available to an employer if it is sponsoring an employee who has, at a minimum, a Bachelor’s degree or the foreign equivalent and will be working for the employer in a job that requires, at a minimum, a Bachelor’s degree or the equivalent. H-1B visas are year-round visas that are granted for up to three years initially.

Because the H-1B visa is the most common type of visa in the United States, Congress limited the amount of H-1B visas it issues annually in its attempts to protect U.S. jobs. Therefore, every year, only 85,000 H-1B visas are available. If the government receives more H-1B visa petitions than it is allowed to approve under its Congressional mandate, it conducts a random lottery every year to determine which petitions to review. Those not selected in the lottery are returned to the employer without ever getting in front of an immigration officer.

The first day that H-1B visa petitions are accepted for the annual lottery is April 1st and the visas, if approved, take effect on October 1st. In recent years, the H-1B visa allotment has been exceeded on the first day that the government begins accepting petitions. Therefore, employers that do not file petitions on April 1st have been unable to sponsor their employees and must wait a full calendar year to re-apply.

So when should you start working on the H-1B visa process? We start talking to clients in January with the aim of starting the process in early February. January is a great time to figure out if anyone on your staff or any potential hires might need visa sponsorship and to initiate the process. Do not wait to start the process beyond February 15 or you risk not being able to file the petition in time for the annual filing deadline.

Because of the major risk of losing employees if H-1B visas are not timely filed, a January review of your employees, their nationalities, and their visa situations is a must. Being proactive in the visa process will allow your organization to have a diverse, multicultural, and professional workforce with much less stress of worrying about looming deadlines.

Keith A. Pabian (@keithpabian) is an immigration attorney at Pabian Law, LLC. He has developed a unique niche in representing organizations in the club and hospitality industries across the nation in visa and immigration matters. He can be reached at keith@pabianlaw.com or (617) 939-9444. This article was prepared for educational purposes only.

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