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Employers are strongly advised to immediately evaluate their needs for H-1B workers for Fiscal Year (“FY”) 2015 (October 1, 2014 to September 30, 2015). In order to capture an H-1B visa under the annual quota, it is essential to begin preparing H-1B petitions now.

H-1B visas are limited by an annual quota. For the last several years, the demand for H-1B temporary workers has exceeded the supply of visas under the quota. The current number of available visas is set at 85,000 per fiscal year. Of these, 20,000 are reserved for graduates with an advanced degree from a U.S. institution and an additional 6,800 are set aside for various free trade agreements.

Regulations permit filing an H-1B petition up to six months before the start of the fiscal year. Accordingly, starting April 1, 2014, employers may file petitions for new H-1B workers requesting a start date of October 1, 2014. Petitions should be prepared now in anticipation of an April 1st filing date.

During the current fiscal year, the number of H-1B petitions filed during the initial week of the filing period exceeded the number of H-1B visas available under the quota. Accordingly, H-1B visas were exhausted within the first week of the filing period. Because the number of H-1B petitions filed exceeded the number of H-1B visas available, all H-1B petitions received during the initial filing period were entered into a random lottery to determine which petitions would be selected for processing. H-1B petitions not selected in the random lottery were returned to the petitioner.

Based on continuing demand and a strengthening economy, it is likely that H-1B visas will be exhausted prior to the end of the 2014 fiscal year. It is possible that H-1B visas will be exhausted during the initial filing period. Thus, it is imperative that employers plan early and submit their H-1B visa petitions on April 1, 2014.

H-1B visas are available for temporary employment of foreign nationals with a bachelor’s degree or equivalent to be employed in specialty occupations requiring the services of degreed individuals. The prospective employee must have completed all requirements for the degree at the time of filing the H-1B petition although it is not necessary to have received the actual diploma.

Employers should particularly review the possibility of filing an H-1B petition for any alien worker temporarily employed under the F-1 student visa category with Optional Practical Training (“OPT”) authorization. With limited exceptions, OPT employment authorization generally lasts no longer than 12 months. At the end of the 12 month interval of OPT time, H-1B visas may not be available. Therefore, it is essential to plan ahead and file an H-1B petition on April 1 if the company wishes to continue the employment relationship.

Individuals employed by certain exempt organizations, those transferring from one H-1B employer to another, and those extending existing H-1B status generally are not subject to the H-1B quota. Therefore, such workers may not be subject to the annual H-1B quota.

Employers unable to utilize the H-1B visa category may have other immigration remedies available under the Immigration & Nationality Act. We caution that the foregoing discussion is a very broad summary of a complex law. Availability of visas for any given situation depends on a wide range of individual circumstances. This information should not be construed as legal advice for any one immigration matter. We will continue to update you as this issue develops.