We are approaching that time of year when new H-1B cases that are subject to the annual numeric cap can be prepared for filing during the first five business days of April. The effective validity start date for petitions accepted for processing will be October 1, 2017. For several years now, USCIS has received significantly more H-1B visa petitions than the available number within the initial 5-day filing window and filings were subjected to a lottery to determine which cases would be processed and which would be rejected. We fully expect that this year’s filing season will result in a similar number of petitions being filed during the initial acceptance period. It is important that you begin considering which employees you wish to file an H-1B petition well in advance of April 1, 2017, as there is significant work that must be completed in order to file each petition.
The H-1B category has continued to be one of the most useful visa categories for bringing in skilled professionals to work in the U.S. The H-1B classification is available only to workers who are qualified in a “specialty occupation,” meaning the offered position must require, and the foreign national must possess, at least a Bachelor’s degree, or its equivalent, in a specific set of fields, in order to qualify for H-1B status.
Please note that for certain employees, holding H-1B status would be an improvement to the terms of their status, while for others the H-1B is the only option for holding or extending status and work authorization in the U.S. As we will be entering a period under a new administration, it is possible that there will be additional requirements or limitations on H-1B petitions, possibly as early as prior to this year’s cap filing window in April 2017 but more likely by next year’s cap filing window in April 2018. Given the higher potential in future years, you may want to include employees on your list this year regardless of whether this category would be an improvement or absolutely necessary for extended work authorization.
We urge you to review your current list of employees to determine if anyone should be considered for H-1B sponsorship in the coming cap season. We suggest that you specifically look at any current U.S. employees who are not in H-1B status, with particular attention to employees in F-1 (OPT or CPT). Unless these individuals qualify for extensions in their current employment authorization or qualify for another classification, it is imperative that cap subject petitions be filed. F-1 nonimmigrants in their initial period of OPT EAD employment authorization who hold STEM degrees from U.S. universities and who work for E-Verify enrolled employers may be able to extend their OPT employment (if they have not already done so) if the petitions filed on their behalf are not selected in the lottery. That said, you should file these cases this year and not hold for next year in the hopes of positive immigration reform. F-1 employees who are working on OPT EADs that expire between April 1 and October 1 who are in valid nonimmigrant status are eligible to remain in the US and working under the “cap-gap” rules (however note that F-1s in CPT are not eligible for “cap gap” work authorization).
Unlike F-1 nonimmigrants, J-1 exchange visitors do not have “cap-gap” protection and must have work authorization that carries them to at least October 1 in order to remain in the US and to work. As J-1 exchange visitors are expected (and sometimes required) to return to their home country after their cultural exchange program ends, in many cases, sponsoring a J-1 exchange visitor for an H-1B visa would require a new job offer and/or return travel to the J-1’s home country.
In addition to your F-1 and J-1 employees, you may have other employees in such categories as TN, L-1, E or H-1B1 (nationals of Chile and Singapore) status. While they have work authorization, there are strategy decisions to make regarding sponsoring these individuals for H-1B. We are happy to discuss these cases with you so that you are aware of the issues/options. The most common benefit to moving certain employees to H-1B is that H-1B allows for dual nonimmigrant intent where many other categories do not. Furthermore, while there is a limitation of stay of 6 years attached to the H-1B category generally speaking, extensions beyond the sixth year are available in two common situations. The first is if a labor certification (PERM filing) or Form I-140 immigrant visa petition is filed 365 days or more before the six year limit. In cases where a labor certification or immigrant visa petition is filed timely, H-1B status may be extended indefinitely as long as the labor certification, immigrant visa petition, or adjustment of status application is still pending. The second way to extend beyond the normal six year limitation of stay is in the event that the individual is the beneficiary of an approved Form I-140 immigrant visa petition, but the priority date is not current. In that situation, the individual can be sponsored for H-1B extensions in 3-year increments. Lastly, some of the talking points on the Trump transition papers indicate that the United States may withdraw from NAFTA. This could create a dilemma for individuals in TN status.
You should also consider individuals who may have Employment Authorization Documents as L-2, H-4 or E-1/E-2/E-3 derivative spouses. While each of these categories will allow an individual to work for your company, there are limits to each one that should be considered, such as:
- L-1 nonimmigrants, particularly L-1B nonimmigrants may be good candidates to change to H-1B if the ultimate intention is to sponsor the individual for permanent residency and there is a need to be able to extend nonimmigrant status beyond the normal five year period. Unlike H-1Bs, there is no way to extend an L-1 nonimmigrant beyond the normal limitation of stay based on where the individual is in the permanent residency process. While it is not mandatory to move someone in this position to H-1B, it should be considered as an alternative. One drawback to changing an L-1 nonimmigrant to H-1B is that L-2 spouses who have EAD cards, may lose the ability to work once their status is changed to H-4, if they do not qualify for an H-4 EAD.
- TN nonimmigrants (Canadian and Mexican citizens) are required to have nonimmigrant intent (i.e., they must intend to return home after completing their employment in the United States). While TNs can technically extend their TN status indefinitely, the longer a TN remains in the US, the more difficult it can be for that person to show ties to his/her home country. Furthermore, once that individual wants to start the permanent residency process, then they may have a difficult time persuading a CBP or USCIS officer that they still have the requisite nonimmigrant intent.
- F-1 nonimmigrants are generally limited to one year of practical training after completing their program of study. A 24 month extension of OPT is available if the employer is enrolled in E-Verify and the individual completed F-1 studies in a STEM degree program. If they cannot change to another employment classification, then they will need to depart the U.S. or choose to go back to school. In any event, they will run out of time to work in the United States. F-1s are also required to have nonimmigrant intent.
- J-1 nonimmigrants are granted a total of anywhere between12 months to five years of employment authorization pursuant to their exchange program in the United States, depending on their category of J-1. While many J-1 nonimmigrants are subject to a two year home residency requirement making them ineligible for a change to H-1B, others are not subject to this requirement and can be considered. J-1s are also required to have nonimmigrant intent.
- H-1B1 employees are citizens of Singapore or Chile. H-1B1 visas are only valid in one year increments and the individuals are required to have nonimmigrant intent (the intent to return home after completing employment in the United States). While the H-1B1 numbers are “carved” out of the regular H-1B cap, the USCIS has determined that H-1B1 nonimmigrants remain cap subject and have not actually been counted.
- L-2, E-1/E-2/E-3, H-4 spouses with employment authorization present a different situation that should be considered. Unlike all other nonimmigrant classifications, these spouses can apply for and be granted Employment Authorization Documents (EADs). EADs provide individuals with the unrestricted right to work in the U.S. However, the EADs for dependent spouses are tied to their spouses continuing to hold the principal L-1, E-1, E-2 or E-3 nonimmigrant classification or for the spouse of an H-4 to continue to have the principal maintain H-1B and an underlying I-140 approval. Therefore, you may want to sponsor employees who have EADs based on these nonimmigrant classifications in order to regain control of their ability to extend work authorization.
- O-1 nonimmigrants can extend their status indefinitely and can pursue an immigrant visa petition while they hold O-1 status. However, unlike H-1B nonimmigrants, they cannot maintain their O-1 status once they file I-485 applications for adjustment to permanent resident status, and they cannot travel for several months (until their advance parole travel authorizations are issued) once their adjustment applications are filed. While it is not mandatory to move someone in this situation to H-1B, it should be considered as an alternative. O-1s are also required to have nonimmigrant intent.
