Fragomen on Immigration: Planning Ahead for H-1B Cap Filings

Employers hoping to hire new employees in H-1B visa status in the 2015 fiscal year that begins on October 1, 2014 can file petitions with U.S. Citizenship and Immigration Services (USCIS) beginning on April 1. Because demand for new H-1Bs is likely to be greater than last year, the annual quota is expected to be reached quickly. For this reason, prudent employers are planning ahead by assessing their H-1B needs, gathering supporting documentation and preparing the necessary paperwork. This blog post will focus on one aspect of such planning, which is advance preparation of the required labor condition applications (LCAs). 

 

 

During the last cap filing season, USCIS received approximately 124,000 petitions, including 104,000 cases filed against the standard cap of 65,000. Cases submitted against the standard cap had a 62.5 percent chance of being chosen for processing. Some 39,000 petitions—or more than 31 percent of total cap filings—did not win a quota number. 

 

Competition for H-1B numbers is expected to be even higher for FY 2015. The combination of an improving economy, a falling unemployment rate, continuing high demand from the information technology (IT) sector, and renewed demand for H-1B workers from financial institutions almost guarantees that the FY 2015 quota will be met almost immediately. While cuts at universities and certain non-profits have also affected some H-1B workers, such workers are exempt from the annual cap in any event so this has no impact on the number of cap-subject H 1B visas available for the coming year. 

 

Employers have been unable to file for new cap-subject H-1B employees since the FY 2014 quota was reached in early April 2013, meaning that there is a great deal of pent-up demand. Accordingly, there is no room for error and employers must be prepared to file all cap-subject H-1B petitions on April 1. 

 

Preparing LCAs 

 

Before an employer can petition USCIS to employ an H-1B worker, it must first obtain certification of an LCA from the U.S. Department of Labor (DOL). By signing the LCA, the employer makes several legally-required attestations related to the prospective employee’s wage rate, benefits and working conditions; certifies that the LCA has been provided both to the employee and to the relevant bargaining representative, if any, or (if there is no bargaining representative) that it has been posted at the worksite; and certifies that there is no strike, lockout or work stoppage at the place of employment. A certified LCA must be submitted with the petition to USCIS, or the petition will be denied. 

 

Advance LCA preparation is particularly critical this cap season. There is expected to be a heavy volume of LCA filings in the first quarter of 2014, which could cause processing slowdowns at the DOL. Accordingly, employers should seek LCAs from the Department of Labor as soon as possible. Obtaining LCAs early will help employers avoid delays and ensure readiness to file H-1B cap cases when the season opens. Early filing can also help employers to meet their non-cap H-1B needs, including location changes for current H-1B employees. 

 

There are both pros and cons to early LCA filing. LCAs filed with DOL before April 1, 2014 will result in a shorter initial period of employment for new H-1B beneficiaries and will require earlier extension filings. However, these administrative burdens are outweighed by the advantage of having an LCA in hand well before the cap filing season and in the event of another federal shutdown.  

 

Although the maximum validity period is three years for both H-1B petitions and LCAs, the H-1B petition must be covered by an LCA that is valid for the entire period of employment. Because LCAs may not be filed more than six months before the requested employment start date, the H-1B validity period will be truncated when the LCA is filed early. 

 

For example, an LCA filed on January 30, 2014, can request an employment start date no later than July 30, 2014. If certified, the LCA will be valid through July 30, 2017. An FY 2015 H-1B cap petition supported by the LCA can be filed on April 1, 2014, with an employment start date of October 1, 2014, but the employer can request a petition validity period only through July 30, 2017, the expiration date of the supporting LCA. This would result in an initial period of stay of two years and ten months—two months less than the three-year maximum initial period of stay permitted under the regulations. 

 

Employers that anticipate a genuine need for more than one H-1B worker in an occupation at a specific worksite may also wish to consider filing a multi-slot LCA. A multi-slot LCA—a single LCA that covers multiple employees in a particular occupation—gives employers greater flexibility to respond to time-sensitive H-1B needs, such as the relocation of H-1B employees to new worksites and the onboarding of new hires porting from H-1B employment with another organization.