Employers and prospective H-1B employees alike are starting to think about the upcoming H-1B filing season (cap-subject H-1Bs, which can be filed starting April 1). One question that some employers have is how many H-1B petitions they can file in any given year.
The short answer is that there is no limit on the number of H-1B petitions that a company can file (note that there is a prohibition against filing more than one petition for the same beneficiary by the same petitioner).
However, there are some things to consider in deciding how many H-1B employees to sponsor at any given time:
- Becoming H-1B dependent. Once a company becomes H-1B dependent, the company has to make additional attestations relating to the displacement of US workers when the company files for non-exempt H-1B employees. An H-1B beneficiary is exempt if he/she earns more than $60,000/yr, or if he/she holds a master’s degree in a field of study related to the position. A qualified immigration attorney can assist the employer with compliance with this attestation requirement. However, some employers may wish to take the H-1B dependency calculation into consideration when thinking about how many petitions to file.
- Document why the positions are needed, if it’s unusual. USCIS may question why a smaller company needs a particular position even if it’s typically accepted as an H-1B-type position. For example, the position of accountant is generally accepted as an H-1B position. However, if a small company were to file 5 H-1Bs for accountants this year, USCIS may question whether a company of that size really needs that many accountants (or any, for that matter). As always, all the facts of the situation must be considered in making the decision of how many petitions to sponsor. It may be that a small company has experienced recent growth that it can document and explain, in which case it may make sense to file more H-1B petitions than would otherwise make sense.
- Show them the money. This brings us to the next point, which is that USCIS will want to see that the company has the ability to pay the wages for the H-1B petitions you file. This is typically less of an issue for a profitable, well-established company. However, it can be critical for a smaller and/or younger company to show that it has the financial resources to pay the wages that the employer attests it will pay when filing an H-1B petition. A variety of documentation can be used to show that the company can pay the wages listed in the H-1B petition including contracts, bank statements, financial statements, invoices, etc. Again, while there is no specific limit to the number of H-1B petitions that a company can file, thinking about how you will document the ability to pay the proffered wage may influence the decision of how many petitions to file.
As with so many issues in immigration law, there is no straight answer. Instead, it can often help to think about the requirements of the category you are requesting, and then thinking about the filing objectively as an immigration officer would, proactively documenting the concerns the officer may have. An experienced immigration attorney can assist you with just that.
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