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The H-1B visa is commonly used by employers to hire foreign nationals in "specialty occupations," which are generally defined as positions requiring, at a minimum, a U.S. Bachelor's degree (or the foreign equivalent) in a specific academic field. Congress has established a limit of 65,000 H-1B visas per fiscal year, with an additional 20,000 H-1B visas reserved for candidates with U.S. advanced degrees (such as a Master's degree or higher). The FY 2015 fiscal year for United States Citizenship and Immigration Services (USCIS) runs from October 1, 2014 to September 30, 2015.

For employers seeking to hire or continue the employment of foreign nationals in professional positions, now is the time for action! On April 1, 2014, the H-1B filing period for FY 2015 will open. Last year, the H-1B cap was reached within the first five days of the filing period when USCIS received over 120,000 H-1B petitions (including both regular and advanced degree petitions). If the number of petitions received in the first five days of the filing period exceeds the available H-1B slots, USCIS will implement a random computer-generated lottery system. If the employer's H-1B petition is accepted for adjudication, the employer will eventually receive a receipt notice with a case number from USCIS. H-1B petitions not selected in the lottery system, and those filed after the cap has been reached will be returned to the employer and cannot be filed until the following fiscal year.

We anticipate the H-1B demand for FY2015 will be higher than last year. The H-1B cap will likely be reached within the first five days of the FY 2015 filing period. As soon as possible, employers should carefully assess their workforce needs to determine if H-1B visas will be needed for foreign nationals and whether those H-1B petitions will likely be subject to the cap. In addition to new hires, recent student graduates working on F-1 Optional Practical Training (OPT) may be potential candidates for H-1B visas. To ensure the best opportunity to obtain an H-1B number, employers should have their H-1B petitions ready to file with USCIS on April 1, 2014. H-1B petition preparation takes time, as various internal postings and Department of Labor filings must precede the H-1B filing with USCIS. Employers should work closely with counsel to assess relevant legal issues related to H-1B petitions and to plan accordingly for the upcoming H-1B filing period.

Melissa Azallion is a Shareholder with McNair Law Firm, P.A. and leads the firm's immigration practice. If you have any questions, please contact Melissa at (843) 785-2171 or mazallion@mcnair.net.

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