U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.  U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2015 cap on April 1, 2014.

HIGH DEMAND FOR H-1B VISAS

The congressionally mandated cap on H-1B visas for 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.  USCIS expects to receive enough petitions to fill the cap by April 7, 2014.  The American Immigration Lawyers Association (AILA) has received several reports from members who, upon inquiring about the status of their FedEx delivery, have been informed of delivery problems. AILA has reported the specific problems to USCIS headquarters. USCIS officials are investigating the situation and will report back as soon as possible.

Last year, USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for 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 of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS rejected and returned the petition with filing fees.  USCIS is expected to use a similar approach this year.

Demand for H-1B visas has exceeded the annual cap every year since 2004. Last year, USCIS announced that it had received a sufficient number of H-1B petitions to reach the cap for FY 2014 on April 5—five days after it began accepting petitions. Although the pace at which employers filed petitions decreased during the recession, the H-1B cap was hit within two days for the FY 2008 filing year and within five days for FY 2009. It was reached within one month for the FY 2007 filing year.

CAP EXEMPT EMPLOYERS

There are, however, certain employers that are exempt from the Cap.  Cap exempt employers are those establishments which are not subjected to the annual H-1B visa numerical limitations listed above.  The following classes of employers fall under the Cap-Exempt category:

  • Not for profit institution of higher education;
  • Not for profit entity related or affiliated to an institution of higher education;
  • Not for profit research organization or a governmental research organization.

If the applicant is not in one of the classes listed above, then it is required to submit its application and hope it wins the lottery.

CALLS TO INCREASE THE NUMBER OF H-1B VISAS

The House and Senate each recently proposed reforms to the H-1B visa program. The Senate-passed Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S.744) would increase base cap from 65,000 to a flexible cap of 115,000-180,000 based on economic circumstances and would increase the exemption for advanced degree holders from 20,000 to 25,000. The bill would also increase prevailing wage requirements for H-1B visa holders (from 95 percent of the prevailing wage to 100 percent) and mandate that employers advertise job openings to American workers for at least thirty days prior to hiring an H-1B worker. The House Judiciary Committee also approved a bill last year with H-1B reform proposals. H.R. 2131, the Supplying Knowledge-based Immigrants and Lifting Levels of STEM Visa Act (or SKILLS Visa Act) would more than double the base cap from 65,000 to 155,000 visas. The bill would also increase the exemption for advanced degree holders from 20,000 to 40,000 visas per year.  Employers and skilled workers are hopeful that Congress will be able to come to an agreement to increase the available visas to fulfill their personnel needs, which is necessary for the U.S. to maintain its ability to attract and retain the best and brightest professionals to its work force?

Related Links:

http://www.uscis.gov/news/uscis-accept-h-1b-petitions-fiscal-year-2015-beginning-april-1-2014

http://beta.congress.gov/bill/113th-congress/house-bill/2131

http://bipartisanpolicy.org/blog/immigration/2014/04/01/h-1b-visa-cap-expected-be-hit-within-days

http://www.durbin.senate.gov/public/index.cfm/pressreleases?ContentRecord_id=51b8f66c-b249-4a52-bc2c-831d47c314f9