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By Loan T. Huynh

USCIS will start accepting H-1B petitions for fiscal year 2016 (October 1, 2015-September 30, 2016) on April 1, 2015. Only 65,000 H-1Bs are issued each fiscal year, with an additional 20,000 H-1Bs for graduates of U.S. master’s degree programs.) As in recent years, we expect the H-1B cap to be reached within a week. Last April, USCIS received approximately 172, 500 H-1B petitions in the first week. There will likely be a lottery for those applications received within seven days of April 1, 2015, once USCIS receives more than 65,000 applications. The lottery is a random selection process of the H-1B applications received to determine which applications will be assigned an H-1B cap number and adjudicated.

Employers who have foreign national employees/candidates who need H-1B sponsorship should start the process now in order to ensure that their applications are filed and received on April 1, 2015. The H-1B is available to employers seeking to hire a foreign national worker with at least a bachelor’s degree or equivalent in a relevant field for a position that requires a degree in that field (also known as a specialty occupation). The H-1B cap applies to new H-1B petitions filed for foreign workers who have not had an H-1B petition filed and approved within the past six years.

Identifying Candidates Who Need H-1B Sponsorship

To avoid missing out on filing an H-1B petition under the fiscal year 2016, employers should identify candidates who need sponsorship and are in professional positions. Some of the candidates may already be currently employed by the employer and are working under temporary work authorization. Below are examples of cases where an employee or job candidate may need H-1B sponsorship:

  • Students who are working under Optional Practical Training (OPT) or Curriculum Practical Training (CPT) and will need H-1B sponsorship to be eligible to be employed in the US once their OPT or CPT expires;

  • Individuals currently in H-1B status with an H-1B cap exempt employer (institutions of higher education or a related or affiliated nonprofit entity, nonprofit research organizations, or governmental research organizations) and are seeking employment opportunities with cap subject employers; and

  • Individuals who are in other nonimmigrant work status such as TN, H-3, H-2, O-1, and J-1 but need to change their status to H-1B.

Employers must also be careful to avoid allegations of discrimination on account of citizenship or national origin, so the questions they ask to elicit relevant information are critical. For further assistance please contact Fredrikson & Byron’s Immigration Group.

Loan T. Huynh, 612.492.7165

Debra A. Schneider, 612.492.7214


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