Lottery Likely- Act Now or Be on the Sidelines until 2016

April 1, 2015 is the first day on which an employer can petition for an H-1B visa for an employee for the upcoming fiscal year.  It is also very likely to be the last day.  If hiring and visa application trends of the last two years continue to hold, the U.S. Citizenship & Immigration Service will receive many more visa petitions on the first day of the application window than the quota of visas available for the entire year, as a result of which:

1. any employer that has not submitted its petition by April 1 will likely be unable to hire a foreign national requiring visa sponsorship in a white-collar position until at least October 1, 2016, with limited exceptions; and
2. even those who do submit their petitions at the opening of the application window will be subject to a lottery for the available visas.

Therefore, any employer considering hiring a foreign national job candidate for a white-collar position in the foreseeable future should consult with counsel immediately about the appropriateness of an H-1B visa for the candidate and position, and the feasibility of submitting a visa petition on April 1, 2015.  This includes current employees with student-visa “optional practical training” (“OPT”) work authorization whom employers may want to convert to longer-term work permission down the road.  Acting now, even if an employee’s OPT authorization will not run out until 2016, can give both employer and employee more than one chance in the lotteries that are likely to be an annual institution for some time to come.

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