As we wrap up 2013 and move into 2014, immigration practitioners and employers will be paying close attention to what is going on in D.C. and the potential for immigration reform. Will we see reform? If we do, will it be piecemeal or comprehensive? These are the two reoccurring questions we hope to see answered in early 2014.
As we anticipate seeing a record number of filings being submitted in the upcoming H-1B cap subject filing season which will be open from April 1st – 7th, 2014, it is important for employers to be thinking ahead. Without any reform, we expect to see the number of petitions filed to greatly exceed the allotted available H-1Bs resulting in significant numbers of H-1Bs being rejected following a lottery. With reform, we anticipate a larger number of available H-1Bs which will reduce the number of cases rejected. However with reform, employers are expected to be required to complete additional pre-filing requirements that may have significant consequences.
This year (FY 2014) was the first year in the last five wherein the H-1B cap was met in the first five days of filing. Of the filings that were submitted April 1-5, 2013, 20,000 Masters’ cap cases were accepted and of the remaining 104,000 USCIS accepted 65,000 applications to fill the regular cap. While this left a number of individuals without an H-1B and created challenges for employers seeking to hire foreign nationals after the cap had been reached, a significant portion of H-1B filings were accepted and adjudicated for FY 2014. We anticipate that in FY 2015 there will be a significant increase in the number of cap subject H-1B petitions submitted in the first 5 days of filing. Without immigration reform this will mean a much higher rejection rate following a lottery.
If reform happens and it increases the number of H-1Bs available under the cap, the rejection rate will be significantly reduced. However, with reform there is also likely to be additional pre-filing requirements placed on employers, including a requirement that employers advertise the position for at least 30 days in advance of submitting an H-1B petition.
With or without reform, it is extremely important for employers to be thinking ahead and planning for the FY 2015 H-1B cap (which opens on April 1, 2014). Please contact our office directly if you have questions.
**This newsletter is provided for informational purposes only, and is not intended to provide legal advice.**