How can employers prepare for this year’s H-1B cap
After all, collecting and preparing the required information for the H-1B registration is just the first step.
What else should you consider as an employer?
More than anything, employers need to ensure that the job being offered to the prospective employee qualifies for H-1B classification. It would be terrible to have a registration selected in the H-1B lottery only to have USCIS ultimately deny the petition because the position does not qualify for H-1B classification.
To be eligible for H-1B status, a petitioner must establish that the offered position requires: (1) the theoretical and practical application of a body of highly specialized knowledge; and (2) the attainment of a bachelor’s degree or higher degree in a specific field of study as the minimum entry into the occupation.
The offered position must meet only one (1) of the following four (4) criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position; or
The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree; or
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
In addition, the employer must pay the prevailing wage for the position as determined by its occupational classification and the geographic area of employment. We have created this instructional video that provides the required steps to determine the appropriate prevailing wage for an H-1B position.
H-1B Cap Season - FY2025 Considerations and Tips
As we are approaching February 2024, it can only mean one thing for employers and business immigration attorneys: the beginning of H-1B cap season for Fiscal Year 2025 (FY2025). This marks the start of the chaotic period from February to April when hundreds of thousands of H-1B cap registrations are prepared and filed with the hope of securing one of the 85,000 H-1B visa numbers available each fiscal year.
As every H-1B cap season creates significant anxiety and drama for immigration professionals, employers and foreign nationals, what are some positive actions we can take to mitigate these worries? Employers and foreign nationals should plan ahead, and communicate/collaborate meaningfully with their immigration counsel.
With so much at stake for U.S. employers and beneficiaries, we highly recommend that employers engage and collaborate with experienced business immigration attorneys to complete this process. Based on the lessons we learned from previous H-1B Registration periods, we offer the following helpful tips.
U.S. employers will need to immediately collect the following required information from the beneficiary (or their prospective employee):
Full legal name as listed in the Beneficiary’s passport;
Beneficiary’s gender;
Beneficiary’s date of birth (mm/dd/yyyy);
Beneficiary’s country of birth;
Beneficiary’s country of citizenship;
Beneficiary’s passport number; and
Whether the beneficiary possesses a Master’s (or higher) degree from a U.S. college or university.
Keep in mind that USCIS will most likely implement a new selection process this year in order to reduce chances for companies to game the system (and file multiple registrations for same beneficiaries). This new selection procedure will rely on the beneficiary's passport number, which is a unique identifier. USCIS has indicated that if a beneficiary does not possess a passport, they will not be able to be registered in the cap.
During FY2024, USCIS received over 483,000 registrations, more than 176,000 of which were for beneficiaries with multiple registrations, including one beneficiary with 83 registrations. In an effort to cut down on this fraud and misrepresentation, USCIS has promised to implement new selection procedures.
The U.S. employer will also need the following information about their company:
The Federal Employer Identification Number (FEIN);
Corporate headquarters address; and
Name and contact information, including cell phone number and email, of the person who is filing the H-1B registration on behalf of the Employer.
The process to prepare and electronically file H-1B registrations can be anxiety-laden and challenging, so it is essential to work with an experienced business immigration attorney. Follow me for more timely updates.