Legal Blogs and Updates

The “Great Resignation” among US workers has been triggered by the COVID-19 pandemic and the rise of remote work, creating a palpable shortage of qualified professional workers* for hire into open positions in all industries.

As a result, each employer’s search for the best candidates must be broader and deeper than ever. One source that employers might not have previously considered is the pool of talented foreign national workers who have graduated from our best US universities, who are already here in the US, and who are ready and well-qualified to work for a US employer willing to sponsor them for work pursuant to an H-1B petition.

Remember that:

• The sponsoring employer need not be a global company with offices outside the US. An employer who operates only with US offices can also hire an H-1B worker.
• The cost is manageable.
• The timeline is reasonable.
• The worker hired is eligible for work in H-1B status for up to six years.
• Some of these potential H-1B workers may already be working for you in another status and need only be “converted” to H-1B status by filing in this category. 
• There is no need to advertise for the position. 

But as in any other hiring decision, pre-planning is required, and there is a process that must be followed.

There are two types of H-1B workers:

1. Those in another status who are filing for H-1B for the first time (H-1B Cap Cases), and
2. Those already in the US in H-1B status for another employer (H-1B transfers)

In your analysis, remember the "rule of six": 

• An H-1B is eligible to work in H-1B status for up to six years.  
• While H cap cases (new H cases transferring from another status) can be available to start work in six months,  
• H transfer cases (those already in H status for another employer) can be available in less than six weeks.

A successful H-1B filing would result (assuming proper planning by the employer) in a long-term employment relationship with a degreed professional employee who can be onboarded within a reasonable timeframe. 

For H-1B transfers, this onboarding process involves identifying an applicant already in H status and then filing the application and processing it for approval. These cases can be filed and the individual hired at any time without regard to caps or quotas.

For H-1B cap cases, there is a longer onboarding process for which you should remember three dates that are going to occur within the six-month period mentioned above.

They are:

March 1 through March 18, 2022: registration for the H-1B lottery;

April 1 through June 30, 2022: if selected in the H-1B lottery, file the H application;

October 1, 2022: the effective date on which the H-1B worker can start work with an H1B approval. 

If you’d like to participate in this year‘s H-1B lottery to hire and onboard H -1B cap hires, we suggest you take the following steps now:

1. Review your current workforce for existing foreign national employees who may be eligible for H-1B status;
2. Talk to your recruiters about any foreign national applicants they are considering to determine if any are already in H status and would be eligible for filing as H transfers and who could be available to you within six weeks or who are instead H-1B cap applicants who could be available to you by October 1, 2022.

When assessing H cap applicants, it is essential that you identify them and contact us by no later than Tuesday, February 15, so that we have sufficient time to process a March 1, 2022 H-1B cap registration filing to allow you to participate in this year’s lottery.

We are available to speak with you preliminarily by telephone (at no charge) to assess potential candidates with you or to talk further about the process and look forward to hearing from you.

Remember that just like the US lottery for financial rewards, the same slogan would appear to be relevant: “you have to be in it to win it.”

Accordingly, as an employer looking for opportunities for sourcing talent, you need to be ready to file your registration for the H cap lottery to consider this new source of qualified professional employees to supplement and strengthen your business this year.

* Qualified professional workers are those with a BS degree or above, performing work in a position meeting the definition of specialty occupation.