February has rolled around again and we’re thinking about powder days for skiing in the mountains and Caribbean vacations to find some sun, and April showers to bring May flowers… yes, April is right around the corner! So it’s time to start working on H-1B petitions that must be filed on April 1 for eligibility under the annual numerical limit on H-1B approvals known as the H-1B cap.

Many of our clients don’t have to worry about the H-1B cap at all: colleges, universities, nonprofits affiliated with colleges and universities, nonprofit research organization and government research organizations are exempt from the H-1B cap.  Exempt employers can sponsor employees for H-1B status any time of year.  But most employers are subject to the cap and only can file initial H-1B petitions for new employees on April 1 each year.

All of the H-1Bs filed on April 1 for the H-1B cap are placed in a lottery to determine which H-1Bs are the lucky ones. If you miss the April 1 filing date, you’re out of luck. The lottery is inconvenient and uncertain, but H-1B is the only option for many employment situations so employers keep entering the lottery.  In recent years about half of the H-1Bs filed on April 1 have been successful in the lottery.

If your organization is subject to the H-1B cap and you have recent hires who are foreign nationals and recent graduates of U.S. institutions with employment authorization for Optional Practical Training (OPT), then H-1B probably is the next step.  Their continued employment with the organization after OPT may depend on the employer filing an H-1B petition on April 1 to take advantage of H-1B cap gap protection.

So don’t wait until March to start work on an H-1B for April 1.  Now is the time to start! It takes time to prepare an H-1B petition and you don’t want to risk missing the April 1 filing date.

Post by Leigh Cole, Esq.