H-1B Outlook for 2016

If your company is thinking of sponsoring a foreign national employee or new hire for H-1B work authorization this year, it’s time to get started. Most employers must initiate H-1B sponsorship under the annual filing cycle, which opens on April 1 and will close in 2016 on April 7, with an October 1 effective date. Employers filed 225,000 petitions during the five-day filing window in 2015, seeking one of 85,000 H-1B slots for each H-1B candidate. USCIS selects cases to process by a random lottery. Foreign nationals whose petitions are not selected in the lottery must obtain other forms of work authorization or leave the U.S.

The shortage of available, new H-1B slots has been growing more acute in the last several years. Even if the foreign-national professional has work authorization now, employers need to time the H-1B filing to continue it beyond the current expiration date. Sometimes a gap in work authorization for an H-1B candidate selected in the lottery can be covered by utilization of the “cap gap regulations.” Other times, the employer may need to file an H-1B petition well before the current work authorization expires to catch the annual H-1B filing cycle and to maximize the chances that the foreign national will get into H-1B status during his or her authorized time in the U.S.

Employers also need to be able to plan alternative work authorization for an employee if the employers’ petition is not selected in the lottery, and the current work authorization expires. The Obama administration has proposed a longer duration for the STEM OPT extension that benefits foreign professionals in the fields of Science, Technology, Engineering, and Math, and these new regulations should be effective in time to expand this alternative for employees in the designated fields.

Certain employers are cap-exempt and can sponsor new H-1B petitions at any time. This group includes institutions of higher education, nonprofits affiliated with institutions of higher education, and governmental or nonprofit research organizations. These employers need not plan around the annual filing cycle for the H-1B.

Processing of an H-1B petition is complex. It requires a separate filing with the U.S. Department of Labor and assembly of supporting documents before the H-1B petition is ready to file with U.S. Citizenship & Immigration Services. Thus, employers should start the process early and allow several weeks of lead time for petition preparation.

MSEC immigration staff are available to answer questions from members about H-1B planning and processing. Consultations on H-1B or other immigration status questions are available as a benefit of membership, while processing and filing of individual petitions is offered on a flat-fee basis. Visit MSEC.org for more information.