On April 1, 2014, employers will be permitted to submit new H-1B petitions to U.S. Citizenship and Immigration Services ("USCIS") for Fiscal Year 2015. For U.S. employers needing to compensate for domestic labor shortages, the H-1B visa can be a valuable tool for hiring skilled professional workers, such as engineers, physicians, researchers, or IT professionals. H-1B classification is reserved for skilled foreign professionals who will be employed in a professional occupation, requiring at least a Bachelor's degree or its equivalent in a specific field relevant to the occupation. The foreign professional filling the position must be qualified to perform services in the specialty occupation because he or she has attained at least a Bachelor's degree or its equivalent in the field.

Acquiring H-1B status for a foreign professional takes careful planning. The H-1B cap is the annual numerical limit/quota set by Congress limiting the number of H-1B visas that USCIS can grant each year. Currently, the H-1B cap is set at 65,000 visas for employees with at least a Bachelor's degree or equivalent, of which up to 6,800 are reserved for foreign nationals of Chile and Singapore, and 20,000 visas for employees with a U.S. Master's degree or higher. Once these 85,000 visas have been allocated, USCIS will not grant additional H-1B visas until the following fiscal year. Additionally, initial H-1B visas petitions submitted and accepted under the cap in April 2014 will not become effective until October 1, 2014. This means that employers may need to consider staffing needs for the upcoming year earlier than they might otherwise.

Not all foreign professionals who qualify for H-1B status are subject to the cap. Foreign nationals who are already employed in H-1B status and have previously been counted against the cap are not counted again. Thus, foreign professionals who are seeking to extend their stay, change employers, or requesting concurrent employment can do so without waiting until April 1 or worrying about numerical visa limits. Employees at institutions of higher education or at related or affiliated non-profit entities, nonprofit research organizations, and governmental research organizations are also cap exempt. Finally, physicians who have been approved for a Conrad 30 J-1 waiver of the two-year foreign residence requirement based on employment in a medically underserved area are not counted against the cap.

Last year, the H-1B cap limit was exhausted by April 5, just five days after USCIS began accepting petitions. As the economy continues to pick up and employers hire more new workers, we anticipate that the demand for H-1B visas will increase. Employers should identify current and prospective employees who qualify for and need an H-1B visa as early as possible and begin taking steps to prepare H-1B petitions accordingly. We recommend that employers file all cap-subject H-1B petitions no later than April 1, 2014.

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