Carl Shusterman, Managing Partner, Law Offices of Carl Shusterman

Every spring and early summer the cycle repeats itself. The sounds of baseball emanate from playing fields nationwide, people marvel at the unpredictability of the weather, and employers neglect to file H-1B petitions on behalf of foreign-born professionals on time.

As recruiters who work with foreign-born talent know, the H-1B visa category provides temporary work status for professionals who are filling jobs that have a minimum requirement of a bachelor’s degree. The H-1B is good for three years and can easily be extended for an additional three years. This is the visa category for business executives, scientists, engineers, computer specialists, physicians and others whose jobs require at least a four-year degree. In an era when the talent pool has gone worldwide, it’s important for recruiters to have a working knowledge of this visa category.

One of the most important aspects of the H-1B to consider is that there are only a limited number of visas available. U.S. immigration law permits employers to submit 85,000 “cap-subject” H-1B petitions to be filed by U.S. employers each fiscal year. This year, the U.S. Citizenship and Immigration Services (USCIS) started accepting H-1B petitions subject to the numerical cap on Monday, April 2 for workers who will be authorized to start their jobs at the beginning on October 1, 2012.

Of these 85,000 visas, 20,000 are reserved for persons in possession of an advanced degree from a university in the U.S. Last year, the 20,000 cap was reached on October 28, while the 65,000 cap was reached less than one month later on November 22. This year, all 85,000 visas were already exhausted in early June.

As in past years, our law firm tracks the number of H-1B petitions filed with the USCIS on a weekly basis on our website. Recruiters should urge employers who are subject to these numerical caps to submit their petitions as early as possible to be certain that they will be able to hire foreign-born professionals, many of whom have graduated from universities in the U.S.

Is Your Company Exempt from the H-1B Cap?

Cap-exempt employers are permitted to hire H-1B professionals all year long. How do you know if your company is H-1B cap exempt? Here is a quick test. If you answer “yes” to any of the following questions, your company qualifies as an H-1B cap-exempt employer:

• Are you an accredited public institution of higher education that awards bachelor’s or associate’s degrees?
• Are you a nonprofit entity related to or affiliated with an institution of higher education?
• Are you either a nonprofit research organization or a governmental research organization?

In addition to the cap exemption afforded to certain employers, some H-1B professionals are exempt from the cap. These include:

• Previous and current H-1B holders who have been counted towards the cap during the past six years, and;
• Physicians who have received waivers of the two-year home residency requirement.

If you have determined that your organization or the prospective H-1B professional is cap-exempt, you will be able to file the H-1B petition whether or not H-1B “cap-subject” numbers are available.

To further sweeten the deal, in most instances, cap exemption for employers also means an exemption from the American Competitiveness and Workforce Improvement Act (ACWIA) fee. This amounts to a savings of $750 to $1500 in filing fees to the employer for each H-1B petition submitted.

When H-1B season rolls around again, I offer this final piece of legal advice to recruiters seeking to secure foreign-born talent. Step up to the plate and play ball!

Carl Shusterman served at Trial Attorney with the U.S. Immigration and Naturalization Service and is principal of The Law Offices of Carl Shusterman. He can be reached at carl@shusterman.com. Follow Carl Shusterman on Twitter @immigrationasap.