The H-1B Season Is Upon Us Again


David H. Nachman, Esq

The 2013 H-1B Season is Upon Us . . . Will This Year's Economy Bring a
Lottery? At this juncture, it does not seem likely. However, as the
statistics from last year show, planning in advance of April 1st for the
H-1B is the key to being able to continue your authorized work status in
the U.S. It is likely that it need not be said but . . . it is always best
to seek competent immigration legal counsel to be able to find a way to
legally remain in authorized work status in the U.S.

Yes, it is that time of year again! We always hear the Accountants moan
and groan about the approaching April 15th deadline each year, but you
have to listen a bit more closely and you will hear (and see) the U.S.
Business Immigration Lawyers and Attorneys manifesting their continuing
distaste for the April 1st filing date for cap-subject H-1B professional
and specialty occupation workers.

Well, here we go again . . .

April 1st, 2013 marks the first day when prospective H-1B petitioning
employers and prospective H-1B employees will be able to apply to the U.S.
Department of Labor (DOL) for Labor Condition Applications (LCA) and H-1B
visa petitions to the U.S. Citizenship and Immigration Services (CIS) for
employment in the fiscal 2013-2014 year (FY 2013). Our advice to our H-1B
employer clients continues to be that they need to think about filing H-1B
petitions on (or very close to the) April 1st deadline for new and
existing employees (usually international students in Optional Practical
Training [OPT]) who will be eligible for first-time H-1B visas to begin
their employment on or after October 1st, 2013.

By way of background, each Fiscal Year (FY), Congress mandated an annual
cap of 65,000 H-1B visas for "professional and specialty occupation
workers" who possess the equivalence of a U.S. Bachelor's Degree. There
are also an additional 20,000 H-1B visas available for individuals who
possess the U.S. Master's Degree or other advanced degrees from U.S.
Colleges or Universities.

Some cases are NOT subject to the cap. For example, Institutions of Higher
Education and Government Research Organizations are H-1B Cap exempt
organizations. It continues to be the case that H-1B visa petitions filed
on behalf of current workers who have been counted previously against the
H-1B visa cap are also not included in the annual cap. Additionally,
pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas
are available exclusively to Chile and Singapore Nationals. The
Singapore/Chile numbers reduce the total allotment of H-1B visas available
each fiscal year to 58,200.

Our offices continue to assist international students who are trying to
obtain the H-1B nonimmigrant visa. We also assist employers with E-Verify
applications, so that they can offer international students, who are
working for them in Optional Practical Training (OPT), a 17-month STEM

In 2008, there was a regulation that gave some assistance to international
students in the U.S. who applied for H-1B during their OPT. At that time,
a regulation was promulgated that provided "cap-gap" relief for F-1
students with approved H-1B petitions if the H-1B was filed while the
student was still in a period of approved work authorization. In other
words, F-1 student visa holders who received work authorization in OPT
were permitted to extend the authorized work authorization and period of
stay until October 1st as long as they have received an approved H-1B visa
prior to the expiration of their OPT.

Also, many Science, Technology, Engineering, and Mathematics (STEM)
students continue to use the STEM extension as a way to get two (2) bites
at the apple and to obtain the additional time they need to petition in a
subsequent H-1B cycle. To get the STEM extensions, an employer needs to be
enrolled in E-Verify. Now E-Verify allows the public to view which are and
which are not E-Verify employers.

For several fiscal years, the H-1B allotment actually lasted for almost
eight to nine months. This past year, the H-1B allocation went faster.
However, in some years past, the H-1B allotment was actually exhausted
within three (3) days of the H-1B visas becoming available on April 1st.
This required the CIS to conduct a "lottery". Those were scary times for
individuals and companies seeking H-1Bs.

It is likely that the demand for H-1B visas this fiscal year may be
greater than it was for last year. We keep hearing that "economic
recovery" continues in 2013. For this reason, we continue to advise our
H-1B employers to consider filing on April 1st, 2013, or as close to April
1st, as possible.

About The Author

David Nachman, along with other firm attorneys at Nachman, Phulwani, Zimovcak Law Group, P.C., has worked on such cases as Berger vs. Berger (a landmark decision regarding the interpretation of what constitutes a minority shareholder pursuant to the New Jersey Business Corporation Act) and Wolley vs. Hoffman-LaRoche (a landmark decision in the employment law arena concerning the legal and contractual implications arising from an employment handbook). Mr. Nachman also successfully completed nonimmigrant and immigrant visa applications for national and international businesses of all sizes in many industries then joined another premier New Jersey law firm located Middletown. Mr. Nachman serves as an attorney in the Corporate/Business Law Department, where he is engaged in commercial and environmental defense litigation as well as securities regulation and contracts interpretation and drafting. Mr. Nachman continues to practice business immigration law for small and mid-sized businesses both in and outside of New Jersey.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.