H-1B Issues and Trends

Hannah F. Little, Esq., Partner
N.C. Board Certified Immigration Law Specialist
Hannah.Little@garfinkelimmigration.com

What is the H-1B Visa?

The H-1B visa is a temporary visa for employers seeking to fill a specialty occupation with a qualified foreign national. A specialty occupation is one which, by prevailing practice in the U.S., generally requires the possession of at least a baccalaureate degree or its equivalent as a minimum, entry level-credential.

The H-1B petition may be approved for a maximum initial period of 3 years and may be extended for an additional 3 years longer under certain circumstances. Petition approval authorizes the foreign national's employment in the position and location stated on the petition.

H-1B Cap and the Cap Lottery

On Tuesday, April 1, 2014, US Citizenship and Immigration Services will begin to accept H-1B cap petitions to request an employment start date of October 1, 2014. There is a statutory cap that limits approval of new H-1B petitions in a fiscal year and the cap is currently set at 65,000. There are an additional 20,000 H-1B visas allotted for persons with an advanced degree from the U.S.

Demand for the H-1B visa is currently high. USCIS received approximately 124,000 H-1B petitions during the last filing period, including petitions filed for the advanced degree exemption. U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a "lottery") to select a sufficient number of petitions needed to meet the caps. For cap-subject petitions not randomly selected, USCIS rejected and returned the petition with filing fees.

A greater volume of petitions are anticipated for FY2015 as a result of the improving national economy and pent-up demand from last fiscal year. Therefore, USCIS will likely implement the "lottery" to randomly select the H-1B petitions which will be accepted for FY 2015.

This is problematic for many employers as the H-1B category is often the only nonimmigrant visa category available for a U.S. company to use to employ a foreign national. Many companies, especially in the technology industry, are lobbying Congress for more H-1B visas to allow more skilled foreign workers to enter the U.S. to increase our country's competitiveness.

Petitions Exempt from the H-1B Cap

Foreign nationals who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

Also exempt from the cap are petitions involving a change in employer from a cap-subject employer to a new employer, an amendment, or an extension of stay. However, an H-1B petition for change in employer filed by a foreign national previously employed by an H-1B cap-exempt employer is not exempt from the H-1B cap.

Finally, a foreign national who has already been counted against the cap within the past 6 years and applies for an H-1B with a new employer is not subject to the cap.

Will There Be Any Changes to the H-1B System?

If Comprehensive Immigration Reform happens, it is likely that it will incorporate changes to the H-1B system. Last year, the U.S. Senate passed a bill which, among other things, would have increased the H-1B cap to 115,000 per year, with the potential to increase to 180,000 depending on the U.S. unemployment rates. However, the bill was not passed by the U.S. House of Representatives. It is unlikely that a comprehensive immigration reform bill will pass this year and therefore, we do not anticipate any changes to the current H-1B system. For the foreseeable future, employers and prospective H-1B workers will have to continue to cross their fingers and hope they get lucky in the lottery.