The Uncertainties of the H-1B Cap

3d-maze-4-1145534-m.jpg

Last month we discussed alternatives to the H-1B visa. One very important reason to consider all options for potential employees revolves around the uncertainties of the H-1B cap process, discussed below.

As the H-1B cap season for FY 2016 approaches, employers and potential employees alike must be prepared. For the uninitiated, the H-1B cap refers to the statutory limit placed on visa’s available for temporary workers in specialty occupations. Currently, this limit is set at 65,000, with an additional 20,000 reserved for those with advanced degrees (also known as the Master’s cap). As more and more employers seek to benefit from highly skilled workers available internationally, particularly in the IT industry, the H-1B visa becomes more highly sought after. Additionally, the ability to extend the H-1B status past the standard six years with the approval of an employment based immigrant petition adds exceptional benefit to both petitioner and beneficiary.

USCIS begins accepting cap-subject H-1B petitions on April 1. In the past two years, the Service has received enough petitions to fill the numerical cap within 5 days. Thankfully, due to this massive influx of potential visa beneficiaries, a lottery system has been implemented. So long as USCIS receives the cap-subject petition within 10 days of the start of the filing period, it will be placed in a random lottery for selection. Those petitions eligible for adjudication under the 20,000 Master’s cap will be selected first. Those that qualify for the Master’s cap but were not selected are placed with all other petitions for possible selection in the 65,000 general cap. With over 172,000 petitions received by USCIS for the H-1B cap last year, there is only about a 1 in 3 chance of any petition being accepted for filing. All petitions that are not selected in this process are rejected and all documents and filing fees returned. Those not selected may have alternative visas available to them, though many will have to wait and resubmit a new petition the following year in the hopes of being selected in the lottery.

Why has there been such a push for these visas? In addition to the need to fill positions in areas which there are not enough qualified U.S. workers, the recent scrutiny and subsequent denial rates in the L-1 visa have forced many employers to take the H-1B route. Additionally, with the ability to extend nonimmigrant status continuously while an immigrant visa is unavailable, many employees that seek to begin the permanent residence (also known as a Green Card) process will attempt to switch to H-1B status. With the recent proposal by the administration to allow H-4 visa holders (dependents of H-1B’s) to gain work authorization, the number of H-1B cap petitions for those already in an employment based status will cause an additional increase in petitions this cap season.

Not all H-1B petitions are subject to this annual numerical limit. The H-1B visa follows the beneficiary, and as such, when one chooses to change employers, they are not required to resubmit and be counted under the cap again. Additionally, there are often options for those that have held H-1B in the past but are currently in a different status, or outside the country. Finally, certain organizations are not subject to the numerical cap. These cap-exempt organizations must be a non-profit or governmental research organization, or a non-profit affiliated with an institution of higher learning. The idea behind this exemption is that the employee will help to further the purpose of higher education or research.

There are many reasons for companies to seek international talent through the H-1B visa. First, the type of positions these employees hold are difficult to fill with qualified U.S. workers. This is one of the reasons recent administrations have pushed to increase U.S. education in Science, Technology, Engineering and Mathematics. While the United States workforce is getting up to speed in these areas, U.S. based companies still require professional services in order to thrive. Hence the use of the H-1B visa in these instances. Next, these international employees often provide their organization with a different world-view and way of thinking, driving innovation. Alternative approaches to common problems expose all employees to new ideas, creating a better business environment.

Though still a few months away, employers should prepare themselves and potential employees for the requirements associated with the H-1B visa petition, in order to provide their legal counsel with all necessary information in a timely manner. Our firm has assisted in preparing thousands of these petitions, and would be happy to lend our expertise to your business, whether seeking one or one hundred specialty occupation workers.

AS