Starting April 1, 2014, the United States Citizenship and Immigration Services (USCIS) will begin accepting H1-B visa petitions, used by U.S. employers to hire skilled professionals from abroad. If lessons are to be learned from last year, employers who are serious about hiring a foreign national should start planning their strategy and preparing their paperwork NOW.

What many employers do not realize is that two potential time-consuming obstacles exist that may make the process longer – measures that have to be taken before H-1B applications are accepted on April 1st. Since there has been no progress on comprehensive immigration reform, advocates are expecting the same scenario to play out as last year:

  • It is anticipated that all 65,000 non-Master’s cap will be met and surpassed in the first week, resulting in a random selection of cases to adjudicate;

  • There will be a lottery to determine which cases get adjudicated, which is completely random and does not give preference of any kind.

  • All applications which do not get selected in the lottery will be returned, envelope unopened, and the candidates (foreign national beneficiaries on whose behalf the petitions are filed) will either have to apply under another visa category or wait one more year to apply.

In order to sponsor a candidate for an H1-B visa, employers first are required to provide what is called a Labor Condition Application (LCA), and these applications require the verification of the company’s Federal Employer Identification Number (FEIN).

If a company has never sponsored an H1-B visa candidate, or if it has reorganized or changed its name, it is likely to face a delay in the verification of its FEIN. In order for the candidate to have a viable chance of getting his or her petition ready to file on April 1, the prospective employer should give itself a cushion of 4-6 weeks to get the FEIN and LCA approved. If an employer takes too long to submit its LCA, it is possible that it will not be processed in time to be able to submit the H-1B on time, since the H-1B petition requires an approved LCA, signed in original by the company representative. Simply put, if your company’s strategy is to “hope” that the federal government processes everything quickly in order to get the H-1B in time, then it is likely that you will be out of luck. Just ask the thousands of H-1B sponsors which did not get their LCA approvals back before April 1 last year.

Last year thousands of LCAs were not processed in time and were approved after the H1-B lottery had happened, essentially nullifying any H-1B petitions linked to those LCAs. Add this to the number (over 50,000) of timely-filed petitions that lost the lottery and this equates to a need for a radical change in strategy in 2014 in order to optimize chances of success.

Luckily the fate of H1-B petitioners and their prospective employers does not rest entirely on the outcome of the lottery. A good immigration attorney will conduct a parallel evaluation for alternative visa options; there are other visas that can be used in place of an H1-B, if necessary. They are sometimes of a shorter duration than the H1-B, and may carry more restrictions, but can offer a stop-gap solution so that the foreign candidates are not lost forever. In many cases they offer advantages to the H-1B such as no filing deadlines and no visa caps. For more information, please see the article H-1B alternatives here.

You have been forewarned: If you are a U.S. company interested in hiring a foreign national for a professional position, the time to act is NOW.

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