As the H-1B cap season for FY 2017 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 U.S. 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 three 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 the allotted 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 then placed with all other petitions for possible selection in the 65,000 general cap. With over 233,000 petitions received by USCIS for the H-1B cap last year, there is only about a 1 in 4 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. While those not selected may have alternative visas available to them, 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 process (also known as a Green Card) will attempt to switch to H-1B status. With the recent change 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 may cause an additional increase in petitions this cap season.